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EDITORial >>

Creating an in-house
underclass

I

n March this year, the Advocate General of the Court of Justice of the European
Union, Juliane Kokott, handed down a judicial opinion in which she contends
that legal professional privilege does not extend to communications between a
company’s executive and its in-house lawyers. Needless to say, Kokott’s opinion
has drawn the ire of corporate counsel the world over, with ‘regressive’ and
‘antiquated’ being just a few of the adjectives that have been used to describe it.

Kokott’s legal opinion may be all these things— it surely is regressive
and may mean European corporates actually turn to their in-house legal
departments sparingly — but one can’t help feeling there may be a grain of
truth in her reasoning. In-house lawyers clearly do not enjoy the same degree
of independence from their employers as an external lawyer. This is perhaps
nowhere more apparent than in Asia, where the ideas around in-house legal
departments and corporate counsel are still in their early stages of development.
The question of independence from one’s employer has always been
a thorny issue for in-house lawyers in Asia. Calls for these lawyers to
better demonstrate the value they add to their companies has seen them
commercialise – moving closer to their businesses if for no other reason
than to demonstrate that in-house teams are far more than just “business
prevention units.” It is this hybrid role – one that straddles both law and
business – that is fertile ground for Kokott-like arguments.
Yet the in-house profession in Asia has demonstrated that it is nothing if
not ethical and professional; capable of handling these often conflicting roles
while preserving their independence. Opinions which cast in-house lawyers
as more predisposed to abusing privileges or the rights conferred on them as
legal practitioners than their external counterparts are imprudent. This is
especially so given that the instances of in-house lawyers being struck off or
disbarred for such indiscretions are greatly outnumbered by the number of
private practice lawyers in hot water for misfeasance.
If Kokott’s opinion is adopted by the ECJ — which many believe is the
most likely outcome— it will cast in-house lawyers as an underclass in
the European legal profession and thus validate erroneous stereotypes
surrounding the in-house profession as a whole. While the decision may not
be binding on Asian courts, if this question arises there is certainly a duty to
ensure that Asia’s profession remains class-less.

IN THE FIRST PERSON
“Many of the largest corporate
departments in the world are
embracing innovative solutions
such as legal outsourcing
to help increase internal
efficiencies”
David Perla, Pangea3 (p8)

“Prior to the recession,

construction companies were
working through a period of
prosperity and when the crisis
hit, it was met with a controlled
and calm response”
Helen Yeo, Rodyk & Davidson (p35)

“We remain committed to

our relationships with local
Hong Kong firms. In fact, we
expect there will be more
opportunities to work with
local firms in the region as the
result of our having a presence
on the ground”
David Fagan, Clayton Utz (p41)

In-house lawyers clearly do not enjoy the same
degree of independence from their employers as
an external lawyer

www.legalbusinessonline.com

1

News | deals>>
>>
CONTENTS

contents

34

24 COVER STORY
ALB’s leading IP firms: Asia
Now in its third year, ALB asks in-house
lawyers, IP counsel and industry experts
to single out Asia’s leading IP practices

NEWS ANALYSIS

FEATURES

8

34 Building & construction:
Activity across Asia’s building and constructing
sectors may have slowed considerably
during 2009, but the innate resilience of the
sector’s major players, coupled with government
stimulus, has seen projects and deals rebound
strongly in 1H 2010
40 ALB-ADERANT Managing Partner Series:
David Fagan, Clayton Utz
Clayton Utz chief executive partner David Fagan
has never been short of a well-turned phrase or
two on what makes the industry tick. He speaks
with ALB on what the future holds for the firm –
and why Asia is key

9

Aussies provide alternative to legal
process outsourcing
Indian LPOs may have flagged their intention
to enter the flourishing Australian legal services
market, but as ALB finds, they would be illadvised to replicate their Indian model ‘Down
Under’
No privilege: The Akzo Nobel opinion
In an influential recent legal opinion, Advocate
General Juliane Kokott of the Court of Justice
of the European Union states that European
in-house lawyers do not enjoy the same rights
to legal professional privilege as their private
practice counterparts. ALB looks at the decision
and speculates as to what this may mean for
in-house lawyers in Asia

Country editors The Regional Updates section of ALB
is sponsored by the following firms:

Practice area and industry editors

China

Intellectual property

International tax

Paul, Weiss, Rifkind, Wharton & Garrison
LLP is a globally oriented, full-service
law firm employing over 500 lawyers worldwide. Paul Weiss is
headquartered in New York and has offices in Hong Kong, Beijing,
London, Tokyo and Washington, D.C.

ATMD Bird & Bird is a dynamic and
progressive firm with an established IP,
corporate & commercial, competition and dispute resolution
practice. The firm also has extensive regional experience
advising both domestic and foreign clients on cross-border
transactions. ATMD Bird & Bird has been voted Singapore’s
Intellectual Property Firm of the Year at the 2005 and 2006 ALB
Awards and the 2005 AsiaLaw (IP) Awards.

Philippines
Founded in 1945, SyCip Salazar Hernandez
& Gatmaitan is one of the most-established
law firms, and the largest, in the Philippines.
Principally based in Makati City, the country’s
financial and business centre, the firm also has
offices in Cebu City, Davao City and the Subic
Bay Freeport. SyCip’s practice covers all fields of law and the
broad range of the firm’s expertise is reflected in its client base,
which includes top local and foreign corporations, international
organisations and governments. SyCip combines the traditions
of professional integrity and excellence with a time-tested
ability to break new ground.

Singapore
Loo & Partners was founded in 1985 as a
niche practice, handling mainly banking,
corporate, securities and commercial work.
With the support of a comprehensive network
of correspondent law firms, the firm serves its
clients in their regional needs. Loo & Partners has
been regularly noted for its IPO, M&A and general corporate work.

52 In-house perspective: GCL-Poly
Through a series of landmark transactions
in recent years, GCL-Poly has become one of
the largest players in the world’s solar power
industry. ALB finds out how the in-house legal
team has transformed itself into a vital, valueadding part of the business

The Industry Updates section is sponsored by the following firms:

IT
Guidance Software is recognised
worldwide as the industry leader in
digital investigative solutions. Its EnCase®
platform provides the foundation
to conduct thorough, network-enabled and court-validated
computer investigations of any kind, such as responding
to eDiscovery requests, conducting internal investigations,
responding to regulatory inquiries or performing data and
compliance auditing - all while maintaining the integrity of the
data. www.guidancesoftware.com.
TM

Financial services
Horwath Financial Services (www.hfs.
com.hk), an independent member firm
of Horwath International (www.horwath.
com), provides a one-stop solution for your financial planning,
investment, property financing and general financial health
needs. We offer a range of payment options for our services,
including a fee-based alternative, setting us apart in an industry
that is dominated by commission-driven sales.

ALB enjoys alliances with the following
organisations
ACCJ
Established in 1948 by representatives of 40
American firms, the ACCJ, a fully independent
chamber of commerce, has grown into one of the
most influential business organizations in Japan,
with more than 2,700 members representing
more than forty countries and 1,000 companies.

Asian Legal Business ISSUE 10.6

www.legalbusinessonline.com

ALB issue 10.6

Copyright is reserved throughout. No part of this
publication can be reproduced in whole or part without
the express permission of the editor. Contributions are
invited, but copies of work should be kept, as ALB can
accept no responsibility for loss.

Regional managing
editor

George Walmsley

Asia editor

Joshua Scott

China editor
Yun Zhang

Australia editor
Renu Prasad

Junior journalists

40

Jessica Seah
Rashida Yosufzai
Alice Yan

44

Production editors

•

Volcanic ash circumvents anti-trust as EU
considers state aid for airlines
Changes to HKSE listing rules may see flurry of
resource IPOs

The Japan In-house Counsel Network (JICN) is
a professional association for in-house counsel
working in, or having other affiliations with,
Japan. JICN offers a forum for communication
between members, social and networking
opportunities, legal seminars, roundtable member
discussions and other activities, as well as events with other lawyer
and in-house groups. Visit www.jicn.jp for more details.

Promoting the development of commerce
between Canada and Japan since 1975, the
Canadian Chamber of Commerce in Japan
(CCCJ) is a private sector, not-for-profit business
organization serving its members through
communications, networking and advocacy. Representing some
33 business sectors, the CCCJ is a member-driven, member-focused
organization and is the longest serving Canadian Chamber in Asia
with over 300 members.

ALB is a sponsor of
the International
Bar Association
Annual Conference
Vancouver 2010

Firm: Herbert Smith
Lead lawyer: Will Pearce and Alex Bafi
Client: Underwriters
Firm: Slaughter and May
Client: Prudential (London and Hong
Kong)
Firm: Cleary Gottlieb
Client: Prudential (US)
Firm: Allen & Gledhill
Client: Prudential (Singapore)
Firm: Debevoise
Client: AIG
• Largest ever
rights issue
by a UK-listed
company will be
made on the basis
of 11 new shares
for every two
existing shares
at 104 pence per
share

• First global rights offering by a
Chinese bank and the first rights
offering by a Chinese company
made available
to US investors
• UBS AG and
CICC were
the global
coordinators
of the
global rights
James Lin
WongPartnership
offering,
BNP Paribas,
JPMorgan, Merrill Lynch and UBS
were the joint lead underwriters,
Citi was the financial adviser of
the H share rights offering
• Davis Polk assisted the client
in managing the entire US
rights offering process,
including direct involvement in
the communications with its
qualifying US shareholders and
handling various enquires

• New Century
Shipbuilding
recently launched Raymond Tong
WongPartnership
its IPO on the
Singapore Stock
Exchange (SGX), aiming to raise
approximately US$731m
• Will be the biggest IPO by a Chinese
company to be listed on the SGX
and Singapore’s second-biggest
listing since CapitaMalls Asia
• Deal is being advised by Jingtian
& Gongcheng, WongPartnership
and O’Melveny & Myers; issuer has
chosen to list in Singapore because
it is a shipping hub used by many
of its customers and as its closest
competitor, Yangzijiang Shipbuilding
Holdings, is listed there
• Complexities arose from the issuer’s
industry, as shipbuilding is classified
as a restricted industry in the
PRC where foreign ownership is
restricted to a maximum of 49.0%.

Alex Bafi
Herbert Smith

• Rights issue is subject to shareholder
approval at a general meeting on
7 June 2010 and rights are expected
to start trading on 8 June

| CHINA |

Firm: Allen &
Overy
Client:
Underwriters

• Herbert Smith advised lead banks
Credit Suisse, HSBC and JP Morgan
Cazenove on all aspects of the
transaction
• Herbert Smith also advised the lead
banks on the debt financing aspects
and new regulatory capital facilities

“To enable the company
to control the financial
and operating policies
and enjoy full economic
benefits of the entities,
a series of contractual
arrangements were
entered into. However,
the position of PRC
authorities in respect
of such contractual
arrangements is
unclear”
Raymond Tong
WongPartnership

Japan Bank for International Cooperation and
Bank of Korea on Cirebon Power Project

Allen & Gledhill

Hong Kong/Singapore

Prudential rights issue

• Samsung Life Insurance is largest
life insurance company in Korea and
provides coverage to 12.6 million
individuals, roughly 26% of the
Korean population

Allen & Overy

Hong Kong

SCA sale

200 M&A

Appleby

India

Quadrangle Capital Partners–Tower Vision investment

300 Equity market

Arendt & Medernach

Hong Kong

L'Occitane Hong Kong IPO

708 Equity market

Barun Law

Korea

GlaxoSmithKline equity investment

• With its debut, Samsung Life
becomes the country’s fourthbiggest stock with a market
capitalisation in excess of
KRW23trn, this is behind only
Samsung Electronics, POSCO and
Hyundai Motor

Cleary Gottlieb

Hong Kong/Singapore

Prudential rights issue

Middle East

Qatar Telecom financing

Clifford Chance

Hong Kong

SCA sale

Hong Kong

COSCO Pacific Limited top up placement

China

China Merchant Bank’s rights offering

3200 Debt market

China

China Merchant Bank’s rights offering

3200 Debt market

• Samsung Life is the third life insurer
to go public in Korea and the second
to do so this year. In April Korea
Life Insurance, the country’s second
largest life insurer, raised US$1.6bn
in what was at the time the largest
offering in Korea since 2006

►► Japan Bank for
International Cooperation
and Bank of Korea on
Cirebon Power Project
JC Lee
DLA Piper

Firm: Linklaters
Client: mandated lead arrangers
• LGD is a world leader in the
production of thin film transistorliquid crystal displays
• Outlook is positive for the LCD
industry which is experiencing a
bounceback spurred by demand
from China and the consumer TV
sector

“Asian tech companies
are looking upbeat.
Demand for electronics
is forecasted to
be strongthis
year globally, but
particularly in China”
JC Lee,
Dla Piper
6

In the ‘Asia Legal Report 2010’, a special
supplement to the April edition (10.4)
of ALB Magazine, the following errors
appeared:
• On p 15 in the table captioned ‘Largest
Taiwan Law Firms’ Tsar & Tsai is listed as
having 35 lawyers including 14 partners.
This is incorrect. Tsar & Tsai has 44
lawyers and 15 partners and should have
been listed at position 5 in this table
• On p17 in the table captioned ‘Largest
Thailand Domestic Law Firms’, Vickery &
Worachai was listed as having 8 lawyers.
The firm’s managing partner was
mentioned as Mr. Harold Vickery. This
information is incorrect. The firm has
18 lawyers and its managing partner is
Mr. Worachai Bhicharnchitr
• On p18 ATMD Bird & Bird is incorrectly
listed in the table captioned ‘Largest
Singapore International Firms’. ATMD
Bird & Bird is a Singapore law firm, not
an international law firm and should have
been listed in table captioned “Largest
Singapore Domestic Law Firms’
• On p2 of the February edition (10.2)
and on p35 of the April edition (10.4) of
ALB Magazine, Peter Siembab is referred
to as the general counsel of Nomura.
Both these references are incorrect. Peter
Siembab’s correct title is head of IBD
Transaction Legal Asia (Exc Japan) at
Nomura.
ALB regrets these errors

The most high-profile legal event of the year
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the most popular night on the legal industry calendar and enjoy a gourmet dinner, fine wines, world class entertainment as well as
invaluable networking opportunities.
Celebrate the achievements and successes of the past twelve months as the winners for 2010 are announced.

Host/Contact name:
Cancellation Policy: Written notice of cancellation must be given to Key Media Hong Kong Ltd no less
than 28 days before the event date. Funds will be repaid less US$50 administration and processing fee. If
no such notice is received the fee will remain payable in full.

Award Sponsors

Fax back to +852 2815 5225 or Email: michelle@kmimail.com
For more information, please contact Michelle at +852 2815 5988

Official publication

Organised by

NEWS | analysis >>

Analysis >>

“Many of the largest
corporate departments in
the world are embracing
innovative solutions such
as legal outsourcing to help
increase internal efficiencies”
david perla, pangea3

Australia:

Next stop on the
LPO train?

Indian legal process outsourcers (LPO) may have flagged their
intention to enter the flourishing Australian legal services market,
but they would be ill-advised to replicate their Indian model in
Australia. ALB investigates.

L

ate last month Pangea3, one of
India’s largest providers of legal
process outsourcing services,
became the first India-based LPO
to enter the bustling Australian legal
services market after announcing a
tie-up with Australian law firm Advent
Lawyers. The two companies will
collaborate on the whole spectrum of
‘junior-end’ legal work, from contract
drafting and revision to compliance
and risk management work, as well as
offering M&A due diligence, litigation
and IP support services.
While the move itself is unique,
this is also tipped to be a litmus test
for other India-based LPOs seeking
to grow away from their traditional
markets in the subcontinent – the
Philippines, the US and UK – and
into Australia. David Perla co-CEO
of Mumbai-based Pangea3, said

8

that clients’ willingness to explore
cost-effective augmentations to
the traditional in-house lawyer/
external counsel relationship in light
of the financial crisis relationship
makes Australia an obvious choice.
“For the past five years we have
seen a transformation in the US
and European legal industry,” said
Perla. “Many of the largest corporate
legal departments in the world are
embracing innovative solutions such
as legal outsourcing to help increase
internal efficiencies … The Australian
legal market is experiencing similar
pressures to the US and European
markets [and] corporations are
demanding better value and cost
containment.” Pangea3 said it is also
assisting in-house legal departments at
Australian companies integrate their
legal technologies and offshore ‘legal

talent solutions’ in their own processes.
But despite Perla’s enthusiasm, other
LPOs with much more on-the-ground
experience in Australia have stated
that cracking the domestic market is
easier said than done. CPA Global is
one such provider. The company, which
has been in Australia and based in
Sydney since 2002, had been handling
mostly IP filings until it recently
broadened its offering to incorporate
transactional, contract and litigation
support. Asia-Pacific
senior manager Eve
Johnson said that while
LPO can deliver cost
savings “of 80% when
compared to hourly
charge-out rates of
large law firms,” the
Eve Johnson
broader domestic market, CPA Global
including in-house legal
departments, remain cautious on the
idea of outsourcing their legal work.
She goes as far to say that “they
are very head-in-the-sand about this
sort of stuff in Australia”. For LPO
to really take off here, Johnson said
that corporates will need to force the
hand of the larger law firms to be more
flexible in their billing, stating that
this attitudinal shift is the reason why
the concept of LPO has taken off so
rapidly in the UK. Yet even if corporate
Australia does ‘force the hand’ of larger
law firms in the country, there is no
guarantee that they would look to
LPOs as the solution.

The future

As the results of our recent ALB
In-house survey show, the majority
of respondent general counsel and inhouse lawyers in Australia and New
Zealand expressed reservations about
Asian Legal Business ISSUE 10.6

NEWS | analysis >>

Analysis >>
either using LPO themselves or having
their external legal advisors use them.
The risks to privacy, quality and
confidentiality that so often accompany
LPO-produced work were gambles that
few are prepared to take.
While the success of any LPO venture
‘Down Under’ will turn on the extent
to which compaies are able to allay
fears vis-a-vis privacy, quality and
confidentiality, finding a suitable model
is perhaps just as important. Perhaps
entering the country via an alliance
(like in the case of Pangea3 and Advent
Lawyers) is the answer here.
Under this arrangement Pangea3
is able to leverage its ability to offer
access to a seemingly unlimited pool
of workers in the subcontinent while
leveraging Advent’s local contacts and
knowledge of local conditions. LPOs
would do well to look at the strategies
already being employed by firms such as
Advent and Perth-based Balance Legal.
Both of these firms have pioneered
cost-effective alternatives to the
traditional delivery of legal services
through the use of secondments: the
placement of lawyers of varying levels
of seniority with clients for fixed
periods of time to help them deal with
increases in workload. Since opening
for business, both Advent and Balance
have built up impressive client lists
that include some of Australia’s largest
companies and a reputation in the local
legal services market for efficiency,
accuracy and excellence. The latter
in particular is something that many
LPOs crave – but few have obtained.
Perhaps the model espoused by Advent
and Balance (soon to be quite a few
more, according to a number of sources
in Australia) is not ‘outsourcing’ in the
sense that we have become accustomed
to, but it demonstrates that the
traditional LPO model is not necessarily
the only answer to the various
pressures that are being experienced
by in-house legal departments and law
firms. LPOs looking to penetrate into
new markets in Asia-Pacific, whether
they be in Australia, New Zealand,
Mainland China or elsewhere, will need
to think similarly broadly and creatively
about how they package their services.
After all, discounting will only get you
so far. ALB
www.legalbusinessonline.com

No privilege:
The Akzo Nobel opinion

E

arlier this year Advocate
General Juliane Kokott of the
Court of Justice of the European
Union issued her opinion in
the case Akzo Nobel Chemicals
Ltd v. EU, suggesting that legal
professional privilege does not apply to
communications between a company’s
executive and its in-house lawyers.

The Advocate General contends
that internal communications with
in-house lawyers, even if they are
enrolled members of a Bar or Law
Society, do not enjoy the fundamental
protection afforded in the European
Union to communications between an
independent lawyer and his client.
The controversial opinion holds
9

NEWS | analysis >>

►► Akzo Nobel: background

• Akzo Nobel Chemicals Ltd and Akcros
Chemicals Ltd and European Commission
developed out of an inquiry by the EC into
suspected price-fixing by Akzo for additives
used to make plastic products
• In February 2003 the EC, with the assistance
of the UK’s Office of Fair Trading, conducted
a dawn raid at Akzo and Akcros’ premises in
the UK
• During the raid the EC seized a number of
documents for which the applicants had
claimed legal professional privilege - notably
two printouts of emails exchanged between
the general manager of Akcros and a member
of Akzo’s in-house legal department, who was
admitted as a lawyer to the Netherlands Bar
• Akzo and Akcros challenged the Commission’s
decision to seize and retain these documents
before the general court, which ultimately
dismissed the appeals on the grounds that
only communications between companies
and their external lawyers are privileged. The
general court concluded that the Commission
is therefore entitled to inspect communications
with in-house counsel
• By their appeal, Akzo and Akcros seek to have
the judgment of the general court set aside

that in-house lawyers are not capable
of independent judgment under EU
professional standards. “A salaried
in-house lawyer, notwithstanding any
membership of a Bar of Law Society,
does not enjoy the same degree of
independence from his employer as
a lawyer working in an external
law firm does in relation to his
client,” the AG wrote in her opinion.
“Consequently, equal treatment of
both professional groups in regard
to legal professional privilege is not
required as a matter of law. There
is a structural risk that an enrolled
in-house lawyer will
encounter a conflict of
interests between his
professional obligations
and the aims and wishes
of his company, on which
he is more economically
Juliane Kokott
dependent and with
Court of Justice,
which, as a rule, he
European Union
identifies more strongly
than an external lawyer.”
It goes without saying that the
opinion – and the subtext underlying
it – has not been received well by
10

corporate counsel, not only in Europe
but across the world - even though the
opinion was expected. The Association
of Corporate Counsel (ACC) has called
the opinion “insulting”, saying that
such decisions “reflect a fundamental
misunderstanding of both the role and
responsibilities of in-house counsel.”
The GC100, the group of general
counsel at England’s 100 largest
companies, was similarly
unimpressed. John Davidson,
GC100 chair and general counsel at
SABMiller, said that the opinion will
both hamper the ability of corporate
counsel to do their jobs and possibly
even diminish the role they play in
corporate Europe.
“The seeking and giving of legal
advice will be inhibited by concerns
that written communications with
in-house counsel will not be protected
from disclosure,” he said. “Decisions
need to be based on candid advice and
unvarnished analysis of the facts on
which such advice is sought.”
And while the opinion (which is
still to be adopted by the Court, but
it is worth noting that such opinions
are extremely influential and almost
always followed) is not binding on
courts in Asia, in-house lawyers

lawyers in Asia, all of the lawyers
contacted by ALB expressed concerns
about the impact the decision will
have on their company’s ability to
receive effective legal advice from
their in-house teams.
“The decision is very
disappointing and not
progressive,” said one
in-house lawyer in
Hong Kong who did not
want to be named. “On
a practical matter it
may not apply so much
John Davidson
out here in Asia, but
SABMiller
there is no way that inhouse lawyers can effectively do their
jobs without the protection of legal
privilege. If lawyers in Europe can’t
rely on this, then their companies
are going to be placed in a difficult
position when it comes to getting good
legal advice.”
Just as worrying is what this
decision means for Asia-based
corporate counsels’ ability to
communicate with their counterparts
who are employed by the same
company in Europe. Lawyers predicted
there would be initial confusion
over just what was covered by legal
professional privilege. “When the

“The seeking and giving of legal advice will be inhibited by
concerns that written communications with in-house counsel
will not be protected by disclosure. Decisions need to be
based on candid advice and unvarnished analysis of the facts
on which such advice is sought”
john davidson, sabmiller

here are viewing the decision just as
skeptically. They say it will entrench
the position of in-house lawyers as
second-class citizens in the profession
and further impair the ability of
companies to receive proper legal
advice, as well as impose restrictions
on how corporate counsels in Asia deal
with their EU and UK counterparts.

Akzo Nobel and Asia: implications

While the Akzo opinion may have a
minimal practical impact on in-house

opinion was handed down, the first
question we asked each other was
‘can we continue to give advice to our
lawyers in Europe and the UK and
be sure that it will be protected, and
how will this affect the advice we get
from the team in Europe?’” The same
lawyer predicted that some in-house
teams working in companies with
operations both in Europe and Asia
would need to move “more cautiously”
and perhaps even more apprehensively,
as a result of this opinion.
Asian Legal Business ISSUE 10.6

NEWS | analysis >>

But where the Akzo decision may
have a tangible impact for corporate
counsel in Asia is by sharpening
attention on the protections they have
closer to home. While the situation
in the region may be better than in
Europe, it is still unclear in many
jurisdictions. For instance, the
Evidence Acts that are in force in
both Singapore and Malaysia could be
looked at as theoretically conferring
privilege on in-house lawyers - but
this has never been tested and
lawyers are doubtful that any court
would, in practice, extend in-house
lawyers such protections.
The situation is similar in India
(where up until recently a lawyer
was said to forfeit his or her license
to practice upon going in-house) but
decidedly more positive in Indonesia
and Korea. In the latter country,
lawyer-client communications – both
by in-house and external lawyers –
are considered a part of a lawyer’s
professional duty of secrecy. In-house
lawyers in Hong Kong enjoy the same
protection of LPP as their private
practice counterparts, but in Japan
there is still confusion as to whether
private practice lawyers, let alone
their in-house counterparts, can claim
privilege. This is not to mention other
jurisdictions such as China, Taiwan
and Vietnam where in-house lawyers
comment that the position on LPP is
“extremely ambiguous.”
Ambiguity around the extent of
privilege means that in-house lawyers
will have to monitor their internal
communications even more closely
than they have done in the past.
Many are already vigilant in this
regard: most of the larger in-house
teams avoid written communications

“When the opinion was handed down, the first question
we asked each other was ‘can we continue to give advice
to our lawyers in Europe and the UK and be sure that it
will be protected, and how will this affect the advice we
get from the team in Europe?’”
in-house lawyer, hong kong

on actual or potential competition
law infringements. And the approach
of avoiding written, competitionsensitive internal communications
is heavily ingrained into major
corporations, with procedures existing
from the CEO down that potentially
damaging competition concerns
should first be raised verbally. The
policy for dealing with any written
communications is then managed
carefully, in conjunction with in-house
counsel.

Commercialisation of corporate
counsel

Perhaps a broader question that
needs to be asked is what effect the
increasing ‘commercialisation’ of
corporate counsel is having on their
ability to claim privilege. Is the
Advocate General’s opinion correct in
the assertion that as in-house lawyers
becomes more integrated in the
commercial hierarchies of employers,
they become less able to discharge
their duties as officers of the law in an
independent fashion?
“To suppose that in-house lawyers
are in a position to abuse privilege
because of their corporate office, or
that they are more predisposed to
doing this than external counsel is a

very questionable assumption,” said
one Japan-based in-house lawyer. It
may be a questionable assumption, but
it is one that many more are making,
given the ever-increasing prerogatives
of in-house lawyers across the region.
And this is where the real threats
to LPP become most apparent. In
most jurisdictions, privileges attach
to a communication only if the
communication was intended to be
confidential and was made in the
course of, and for the purpose of, the
client obtaining or receiving legal
services from the legal advisor.
For external counsel, these criteria
are relatively easy to meet, yet it is
more problematic for in-house counsel,
whose presence within an organisation
and constant communication with
the client (the employer) makes it
more difficult to determine which
communications are properly treated
as privileged.
The fact that many in-house counsel
often simultaneously engage in
both legal and commercial work, or
provide advice to their clients beyond
legal advice – for example, advice
on negotiations, means they need to
be vigilant in considering whether
their communications meet the tests
required for privilege to attach. ALB

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SHANGHAI

HONG KONG

SYDNEY

MELBOURNE

BRISBANE

PERTH

11

NEWS >>

Japan >>

Foreign law firms

uk report

J

Kennedys backtracks on bonus ban
Kennedys told lawyers last year that they would
no longer receive a bonus package, but the firm
recently changed its mind and will now offer
bonuses at the end of the financial year.
However, only those lawyers who have been
with the firm for more than a year and have
billed more than 110 % of their billing target will
be considered for the bonus award.

offices in February last year, yet recruited in force
within the same period – with its biggest hire of
20 staff in finance.
Similarly at A&O, around 400 staff were
slashed from the firm by the end of April 2009.
It went on to welcome approximately 46 new
recruits after raiding the offices of Clayton Utz
earlier this year to set up its Australia practice,
and also recruited eight partners in the UK.

Latham & Watkins and Allen & Overy top
the tables for lateral hires
Latham & Watkins and Allen & Overy (A&O)
have made the most lateral hires during the past
three years, according to a recent study. The
Transatlantic Elite 2010 survey, which published
a range of information on 16 top transatlantic
firms, revealed that the two law firms above
have been most active in the recruitment market.
They had made a total of 48 and 46 lateral hires
respectively, from January 2008 to the present.
This is surprising, given that both firms are
also likely to have made the most redundancies
over the past two years. Latham announced
plans to make 190 associates and 250 paralegal
and support staff redundant across its global

Camerons seal deal to outsource all
business support functions
CMS Cameron McKenna will soon outsource its
entire business support function, following the
tie-up of a £600m deal with Integreon. The firm
will be the first to have IT, HR, finance, business
development, communications, knowledge
management, facilities management and
administration services outsourced.
Although Camerons will help Integreon
develop its new service, the firm will not be
putting any equity into the project. The two
parties will undertake a three-month due diligence
process, and Camerons will sublet a floor of its
City HQ to Integreon, and transfer as many as 200
support staff into the newly created service centre.



ROUNDUP
• Two partners from Thomas Cooper’s Paris office recently left the firm to launch a five-lawyer
shipping boutique which will advise on French and English law for shipping, international trade and
insurance matters, as well as assisting clients in Francophone Africa
• Clifford Chance has promoted 22 lawyers to partner from 14 jurisdictions –five more were made up
than last year. Three of the new partners will be based in New York
• Gary Senior has been re-elected for a third term as London managing partner at Baker & McKenzie.
Senior first took on the managing partner role in 2003 and is nearing the end of his second threeyear term. His third term will begin in September

12

apan's Ministry of Justice has
announced that it plans to ease
restrictions on foreign law firms
operating in the country by allowing
them to establish corporate bodies and
open multiple offices. It is believed
that the proposed amendments will
be submitted to the Diet in the fourth
quarter of this year, and could come
into effect from January 2012.
The news is being closely followed
by a number of foreign law firms who
are believed to ne looking into places
like Osaka as possible locations for
second offices. “Osaka is home to quite
a few major Japanese companies like
Toyota, Osaka Gas and Panasonic,
but it is underserviced by foreign law
firms,” said Mark Weeks, the managing
middle east >>

Bermuda seals DTA
finance market

B

ermuda has taken a big step
towards positioning itself as the
offshore jurisdiction of choice for
Islamic finance after entering into an
avoidance of double taxation agreement
(DTA) with Bahrain.
The DTA represents a reciprocal
arrangement between Bahrain and
Bermuda not to tax the repatriated
income that an individual or corporate
resident of one country has earned
in the other country, and which has
already been taxed.
Paula Cox, Bermuda's Deputy
Premier, said that the DTA puts
Bermuda in an ideal position to
capitalise on Islamic finance's growing
interest in using offshore locations to
structure investments. “We are seeing
an increase in local service providers
expanding their offerings to Middle
East and North African markets
utilising the Kingdom of Bahrain as
a gateway jurisdiction,” she said, “in
addition to offering Middle Eastern
clients convenient access to Bermuda.”
“Many local service providers
have extensive experience of Islamic
structured finance, including both
conventional and Shari’ah investment
Asian Legal Business ISSUE 10.6

NEWS >>

to be allowed to open second office
partner of Orrick, Herrington &
Sutcliffe in Tokyo.
“There are a lot of
manufacturing clients
in that [Western] region
and it would therefore
be an obvious place for
foreign firms to consider
Mark Weeks
opening a second office,
Orrick
if and when the market
opens up…but you really
need to find the right people to make
the endeavor worthwhile."
But a partner at a local Japanese
law firm told ALB that finding the
right people, once you get out of Tokyo,
becomes a difficult proposition. “If you
have a family, there are major quality
of life [and] quality of education

differences between somewhere
like Osaka and Tokyo,” the partner
said. “This would make staffing
an office out there very difficult for
international law firms.”
Lawyers that ALB spoke to are just
as unequivocal in their assessment of
what impact these changes will have
on the complexion of the Japanese
legal services market. “I don't really
understand why these changes are
needed,” said one senior partner at a
major Japanese law firm.
“Major matters for Osaka and
clients from other cities are handled
out of Tokyo and this won't undergo
substantial changes – even if
foreign law firms open in Osaka or
elsewhere.” ALB

news in brief >>
Former Thai PM hires law firm to 'help
restore democracy'
Former Thai Prime Minister Thaksin Shinawatra has
engaged Canadian-based law firm Amsterdam &
Peroff to assist in his crusade to restore democracy
and the rule of law to the troubled Kingdom.
Robert Amsterdam, a founding partner of the
firm said in a press release that "it is our intention
to explore every legal avenue to assist this prodemocracy movement, and urge the international
community not to tolerate the government's violent
crackdown on peaceful protestors."
Amsterdam & Peroff, headquartered in Toronto and
with offices in Washington and London, has made a
name for itself handling complex multi-jurisdictional
litigation, commercial arbitration and political
advocacy in challenging emerging markets.

with Bahrain, takes lead in offshore Islamic
funds. Moreover, it is
likely that the global
market for Islamic
insurance, or takaful,
will continue to grow,
opening exciting
possibilities for Bermuda
Frances Woo
reinsurers."
Appleby
Cayman remains the
leader in offshore Islamic
finance transactions, having played
a part in most offshore-structured

sukuks issued over the last 12 months.
Even so, those lawyers ALB spoke
to agreed that market share is still
up for grabs. “With BVI being such a
popular jurisdiction for Asian clients,
Cayman being a mecca for funds, and
Bermuda and Jersey both having a
strong regulatory environment and
reputation, each of these are well
placed to develop their Islamic finance
market,” said Frances Woo, managing
partner of Appleby in Hong Kong. ALB

gore challenges lawyers to change
During an address at the Inter-Pacific Bar
Association's Annual Conference held in Singapore,
former US Vice President and climate change crusader
Al Gore has challenged lawyers to exercise 'moral
courage' in finding a solution to climate change
problems.
Gore told delegates that lawyers have a role to play
in the climate change debate because one of their
key tasks was to implement political will. He noted
that although addressing environmental concerns in
the course of legal advice would be "inconvenient
and complicated", it was something that nonetheless
needed to be done.
However, Gore may have to some extent been
preaching to the converted. Climate change is an area
where some of Singapore's law firms have already
taken a lead, but according to a number of lawyers,
local clients are still somewhat reluctant to explore
green issues; the majority of instructions, they say,
come from their US and European clients.
Legislative Affairs Office appoints new
director
The Legislative Affairs Office of the State Council has
promoted Song Dahan, the deputy director of the
office, to the role of director as former incumbent Cao
Kangtai retires.
The Legislative Affairs Office (LAO) is an
administrative office within the State Council
which assists the Premier in providing legal advice
and administrative laws to govern the behavior of
government departments. This includes litigation,
legal reconsideration, compensation, punishment,
license, administrative charges and execution.

www.legalbusinessonline.com

13

NEWS >>

India >>

us report
White & Case aim to invade Asia via Moscow
White & Case has its sights set on Asia. The US firm
plans to expand into the Asia region via Mosow,
with plans set in motion to make Moscow a hub for
an increased CIS operation.
The firm has already moved London banking
and capital markets partners Sven Krogius and
Carter Brod to the office and plans to relocate
three associates to the office eventually.
SJ Berwin moves on to possible merger with
Proskauer Rose
Following the breakdown of merger talks with
Orrick, SJ Berwin has moved on to Proskauer Rose
with suggestions Rose’s funds team is acting as the
driving force behind the potential new merger.
Whilst it has been reported that a delegation
from SJ Berwin met Proskauer in New York late
last month, sources suggest that discussions are
still at ‘the very early stages’.
Survey reveals Clifford Chance floundering
in the US
A recent study providing a range of information
on 16 top transatlantic firms has revealed that
Clifford Chance’s US partnership has shrunk
by 21% over the past five years, highlighting the
firm’s struggle to build a successful US practice.
The Transatlantic Elite 2010 survey compiled
information on all four of the UK’s largest firms
and found that the total number of lawyers in
the firm’s US practice (291) is now effectively the
same as in 2006. In total, the number of partners
has dropped from 75 to 59.



Allen & Overy (A&O) is the only other firm of
the four that has also experienced a decline –
its total number of US partners fell by 12.5%,
from 40 to 35, over the past year.
Conversely, Linklaters registered the largest
increase in US partner numbers, recording an
increase of almost 75% from 19 in 2006 to
33 currently. Freshfields Bruckhaus Deringer is also
not faring too badly in the US, with lawyer count on
the rise, up by 74% and with 62.5 % growth in its
US partnership.
Schroeder, Skinner and Butler back for
seconds at Hunton & Williams
Three former Hunton & Williams partners recently
returned to the firm from its US rival Paul Hastings.
Jeff Schroeder, Larry Skinner and Ellis Butler
were partners at Hunton & Williams until 2003
when they left to join Paul Hastings. On
returning to their former firm, they will join the
global energy project finance team and be based
in Washington DC.
Another transatlantic merger on cards
London-based Denton-Wilde Sapte and Chicagobased Sonnenschein Nath & Rosenthal are in
advanced merger talks, with management of both
firms recommending to their partners to support
the move. Both firms will conduct partnership votes
on the matter on 9 June.
The combined firm will be known as SNR
Denton and will have over 1,400 lawyers across
18 countries, including Singapore. If approved, the
merger will take effect from 30 September.

ROUNDUP
• US firm Reed Smith has snared seven real estate lawyers from Pepper Hamilton. The new recruits –
four partners and three associates – will join Reed Smith’s real estate practice in Pittsburgh, along
with two paralegals and five support staff.
• SJ Berwin has been left with just one partner in its German EU and competition team following
the loss of its German head of EU and competition (Alexander Rinne) to Milbank Tweed Hadley &
McCloy. Rinne will assist Milbank Tweed Hadley & McCloy to launch its own European anti-trust
practice.

14

Leading Spanish
firm Garrigues
courts India's
Dua Associates
G

arrigues has become the first
major Spanish law firm to outline
its desire to capture its share of the
Indian market, after entering into a
non-exclusive cooperation agreement
with Indian law firm Dua Associates.
Under the agreement, the two
firms will work together to organise
seminars, edit publications and
develop secondment programs. “The
agreement with Dua Associates gives
expression to our longstanding close
professional ties and will undoubtedly
give added value to both firms,” said
Sergio Sánchez Solé, the partner in
charge of Garrigues' Indian desk.
Solé said he hopes the agreement
will help other companies take their
first steps into India. Garrigues’ India
desk had already been active advising
Fundación Consejo España-India, as
well as other investors that turn to this
institution to develop their corporate
projects in the subcontinent. ALB
china >>

Zhong Lun and
T

he Shenzhen stock exchange has
recently seen some stellar debuts
made by domestic players – Shenzhen
Hepalink’s US$868m IPO on the
Shenzhen small and medium-sized
enterprises board and Zhejiang
Narada Power Source’s US$287m IPO
on the Shenzhen Growth Enterprises
Market board. According to Dealogic,
since January 2010 there have been
nine IPOs in Shanghai raising
some US$7.7bn and 59 in Shenzhen
raising US$7.3bn.
Shenzhen Hepalink, the world's
largest maker of the blood thinner
heparin, recently launched its IPO,
becoming the record holder for the
highest IPO share price in China’s
A-share market. Zhong Lun partners
Asian Legal Business ISSUE 10.6

NEWS >>

industry >>

New 2,500-lawyer firm storms onto
world stage: Hogan Lovells
O
ne of the most talked-about law
firm mergers in recent memory
has finally been consummated. But the
new firm's launch motto (“A new kind
of international law firm...because the
world is changing) is ringing true on a
number of levels, not least for all those
partners who have chosen to leave the
new firm.
Robert Lewis, Lovells' former Beijing
managing partner, quit the firm to
join local outfit Allbright as a senior
international legal consultant. Although
the loss of a managing partner of the
calibre of Lewis is most certainly a
body-blow for the newly formed alliance,
his departure was considered somewhat
imminent. One source close to ALB
noted, “it's a loss, but we could see that
it was going to happen given Robert's
missionary-like zeal to help develop the
local legal market in China.”
The reasons behind two similar
departures this week are perhaps
as clear. In an e-mail to clients last
week, Hogan & Hartson's former
Hong Kong managing partner Gordon
Ng announced that his eponymously
named firm had terminated its alliance
with Hogans and would instead be
joining forces with O'Melveny & Myers.

“Effective 1st May 2010, Hogan &
Hartson will change its name back to
Gordon Ng & Co and we will commence
an association with O'Melveny & Myers.
Our relationship with you remains
unchanged,” the e-mail read.
Hogan & Hartson 'localised' its Hong
Kong operations midway through last
year (allowing it to practice Hong Kong
law under the name Hogan & Hartson),
suggesting perhaps that
Gordon Ng & Co's days as
Hogans' Hong Kong ally
– regardless of the latter's
merger with Lovells –
were already numbered.
Connected to Hogans'
Hong Kong localisation
Steven Robinson
was a reshuffling of its
Hogan Lovells
management on the
mainland, that saw some high-profile
partners frozen out of the firm's ruling
cadre. One of these was Arthur Mok,
who although installed as Hogans'
Shanghai managing partner, was
overlooked for the Greater China
leadership role, which was jointly filled
by long-serving lawyers Jun Wei and
Steven Robinson. In this context, Mok's
recent departure to Ropes & Gray is
also not surprising. ALB

AllBright inject IPO expertise

Su Min, Xu Zhigang and Zou Xiaodong
facilitated the listing. The firm has
been the long-term legal advisor to the
issuer for a decade.
www.legalbusinessonline.com

Hepalink was founded in 1998 and
primarily produces heparin, which is
purified from pig intestines, then made
into a shot used to prevent blood clots
in patients with heart conditions.
The company is the only Chinese
company accredited by the US Food
and Drug Administration to export
heparin.
Zhejiang Narada Power Source,
which principally engages in the
research, development, manufacturing
and sale of chemical power sources
and new energy products, is another
company to have raised funds from
listing on the Shenzhen board.
Advised by AllBright partner Zhang
Xiaohong, the firm’s debut raised
about US$287m. ALB

news in brief >>
Brighter times ahead for in-house
lawyers in Japan: Report
In-house salaries in Japan remain flat in 2010 despite
increased demand for corporate counsel, according
to a report published by recruitment consultants
Optia Partners. The report notes that, although hiring
activity has possibly been at its lowest over the last
18 months, the legal services employment market
seems to have bottomed out and better things can be
expected from Q2 2010.
It also noted that several companies have opened
up new roles in regulatory and compliance, banking
and insurance. And in a trend that is identical
to elsewhere in the region, foreign companies
(gaishekei) continue to out-pay their local equivalents
- in some cases by as much as 30%. But the jury is
still out on whether foreign or local companies are
better places to work for in-house lawyers.
Gaopeng sets up in Hangzhou
Having recently set up an office in Nanjing, Gaopeng
& Partners has furthered its national expansion plans
by launching a Hangzhou branch. Two partners have
already been relocated from Beijing and focus on
corporate, international business and regulatory work.
“One of the impetuses for our decision is the
increasing exportation business in the Zhejiang
region," said Wang Lei, managing partner of
Gaopeng. "The Hangzhou office will work closely
with our headquarters – we are looking to integrate
international business type work from both offices."
Last year, the firm launched in Nanjing via a
merger with Jiangsu Hailang Law Firm. The latest
Hangzhou branch is seen as the final piece in the
firm's expansion plan for the Yangtze River Delta
region. Gaopeng now has offices in Shanghai, Tianjin,
Yangzhou, Taizhou, Nanjing and Hangzhou.
Zhonglun W&D becomes fourth Beijing
firm in Taiyuan

Zhonglun W&D has launched its second domestic
office this year – after opening in Wuhan in January –
this time in Taiyuan, Shaanxi province. The new office
becomes the firm’s sixth domestic branch.
The Taiyuan office has five partners – Liu Yindong,
Ji Yunfeng, Zhang Qiufeng, Deng Jiancheng and Hao
Xiaoming – and 20 lawyers. All partners and lawyers
have joined from Shaanxi Cheng Cheng law firm,
based in Taiyuan with a solid track record advising
on real estate and construction related issues and
projects. Liu Yindong and Ji Yunfeng previously served
as Cheng Cheng's managing partner and deputy
managing partner respectively.
The Taiyuan branch is part of Zhonglun W&D’s
national expansion plans, especially in the outer
regions. It already has international offices in London,
Paris, Riyadh and Lyon.

n 2 April 1986, Campomar S.L. (Campomar) filed to
register, and subsequently obtained registration for,
Nike in Class 3 for perfumery with essential oils (the
1986 Mark).
On 20 November 2001, Nike International Ltd (Nike) sought
to register Nike (the Application Mark) in Class 3. Campomar
opposed the application on the grounds that the Application
Mark was identical to its 1986 Mark.
On 21 January 2002, Nike applied to revoke the 1986 Mark.
In Nike International Ltd v Campomar SL [2006], the Court of
Appeal found in favour of Nike and ordered that Campomar’s
rights to the 1986 Mark be deemed to have ceased from
21 January 2002 (date of Nike’s application for revocation).
Thereafter, the Application Mark was accepted and published
on 14 June 2006.
On 14 August 2006, Campomar filed a Notice of Opposition
against the Application Mark.
At the Trade Marks Registry, Campomar contended that:• As of the date of application for the Application Mark,
the 1986 Mark was valid and subsisting was therefore an
earlier trade mark as defined in Section 2(1) the Trade
Marks Act (TMA).
• Given that the Application Mark was identical to the 1986
Mark and that the goods sought to be registered were
identical to those protected by the 1986 Mark, pursuant to
Section 8(1) of the TMA, the Application Mark should not
be registered.

Volcanic ash circumvents antifor struggling airlines

T

he European Commission is considering allowing limited
state aid to assist airlines struggling with the widespread
closure of European air space following the Icelandic
volcanic ash cloud. During a recent European Policy Centre
breakfast policy briefing, EU Competition Commissioner
Joaquin Almunia said that he was ‘ready to consider’ EU
governments' requests to compensate airlines for losses
amassing from the closures. This followed from the launch
by EU Commission President of an ad-hoc group to assess
the impact of the volcanic ash on the air travel industry and
the general economy.

“We are facing exceptional circumstances ...
member states should demonstrate need for the
aid and its proportionality”
joaquin almunia, eu competition commissioner
Government financial aid to selected national companies
is generally prohibited as anti-competitive, because it
may distort competition by favouring certain companies
over others. However, an exception to the rule under
Article 107 2(b) of the Treaty on the Functioning of the

The Principal Assistant Registrar of Trade Marks (PAR)
found that since the 1986 Mark was no longer registered, it
was not an earlier mark at the material time and Section 8(1)
of the TMA did not apply. Campomar appealed against the
PAR’s ruling on this issue.
The High Court found that although the TMA provided
a definition for what constitutes an earlier trade mark, it
does not indicate the relevant date for determining if such a
mark existed. It was held that the more appropriate time to
consider whether Section 8 (1) applied was the time of the
opposition proceedings.
Since the 1986 Mark had already been revoked at the time
of the opposition proceedings, it was not a registered trade
mark, and therefore not an earlier trade mark. Accordingly,
Section 8(1) of the TMA did not apply as a ground for refusal
of registration of the Application Mark.
Campomar’s appeal was consequently
dismissed
Joyce Ang, Associate
Intellectual Property and Technology Group
ATMD Bird & Bird LLP
Phone +65 6428 9422
Email: joyce.ang@twobirds.com
ATMD Bird & Bird LLP is a Singapore law practice registered as a limited
liability partnership in Singapore. The firm is associated with Bird & Bird, an
international legal practice. It is solely a Singapore law practice and is not an
affiliate, branch or subsidiary of Bird & Bird or Bird & Bird LLP.

16

Joyce Ang

Asian Legal Business ISSUE 10.6

NEWS >>

trust as EU considers state aid
European Union permits aids to make good the damage
caused by natural disasters or exceptional circumstances.
Almunia said that “we are indeed facing exceptional
circumstances”. The Commission is considering limited
state aid measures modelled on those following the
September 11 attacks in the US. State aid measures taken
in the EU after September 11 included compensation for
costs arising directly from the closure of American airspace
and, for a limited period, the extra cost of insurance. The
EU permitted the measures on the condition they were
applied in a non-discriminatory manner to all airlines in the
member state.
Alumina confirmed that volcanic ash aid will carry strict
conditions to prevent discrimination in favour of a particular
airline. “Member states should demonstrate need for the aid
and its proportionality,” Alumina said.
The current aviation industry crisis may also affect the
level of any financial penalty the Commission may impose in
the pending case of alleged price fixing cartels in air freight
forwarding. The decision, ordinarily involving substantial
financial penalties on the participating airlines, is expected
in the next few weeks.
*extracted from Jones Day's Anti-trust Alert, authored by
Jarleth M Burke and Natasha Hall in London ALB

Update >>

International Tax
On October 10, 2010, the Netherlands Antilles as a
jurisdiction within the Kingdom of the Netherlands will
be dissolved. Instead, two separate new jurisdictions,
Curaçao and Sint Maarten, will come into existence

T

he other three islands in the current Netherlands
Antilles (Bonaire, Saint Eustatius and Saba, known
collectively as the BES islands) will become overseas
municipalities of the Netherlands. Curaçao and Sint
Maarten will become autonomous parts of the Kingdom of the
Netherlands, with a status comparable to that of Aruba. As a
result, the Kingdom of the Netherlands, currently consisting
of three jurisdictions (the Netherlands, the Netherlands
Antilles and Aruba) will, after October 10, 2010, consist of
four jurisdictions (the Netherlands, Aruba, Curaçao and Sint
Maarten). However, there will be five fiscal regimes, because
the BES islands, though part of the Netherlands, will have their
own tax regime. This is part of a move by the Netherlands to
make jurisdictions such as the Netherlands Antilles self funding.

Impact on Netherlands Antilles companies.

There will be no change to Netherlands Antilles entities, such
as a Netherlands Antilles NVs, Netherlands Antilles BVs or
Private Foundation (SPF), if their statutory seat is in Curaçao
or Sint Maarten. This applies to both the “old regime offshore
companies” and companies incorporated after 2001. The
“grandfathering rules” for old regime offshore companies
will remain in force, as guaranteed, until 2019. The other
companies will remain subject to the profit tax ordinance.
The Netherlands Antilles do not levy withholding tax on
dividends, interest, royalties and service fees paid to nonresident persons or entities. This will remain the case in
Curaçao and Sint Maarten.
Both Curaçao and Sint Maarten will be the legal successors
of the Netherlands Antilles once the Netherlands Antilles as a
jurisdiction ceases to exist. The Civil Code of the Netherlands
Antilles, including the provisions for legal persons (NV,
BV, foundation, association) and the Netherlands Antilles
corporate income tax law (profit tax ordinance) will be in
force in the new jurisdictions, Curaçao and Sint Maarten.

Taxation

Companies in the BES islands, by operation of law will be
deemed to be resident in the Netherlands, which means that
they will be subject to Dutch corporate income tax and Dutch
dividend tax. It seems reasonable to expect that companies
in the BES islands that are subject to Dutch corporate income
tax and Dutch dividend tax will be entitled to the benefits
of the approximately eighty double taxation agreements
(DTAs) the Netherlands has concluded.
However, this aspect has not yet been included in the bills
regarding the BES islands or in the Dutch tax laws and tax
treaties. If the Netherlands does choose to include the BES
islands in the tax treaties, it would be necessary to conclude
a protocol to the tax treaty with each
tax treaty partner. In current tax treaties
of the Netherlands explicitly exclude the
Netherlands Antilles and Aruba.
By Debbie Annells, Managing Director
AzureTax Ltd, Chartered Tax Advisers ; Suite 1010, 10/F
Lippo Centre, Tower Two, 89 Queensway, Hong Kong
www.azuretax.com, a member of AzureTax Group
(Tel) +852 2123 9339 (direct line),
(Main Line) +852 2123 9370, (Fax) +852 2122 9209
Registered with the Chartered Institute of Taxation for
purposes of anti money laundering legislation.
www.legalbusinessonline.com

Debbie Annells

17

NEWS >>

Update >>

hong kong >>

Changes to listing rules may see

IT column

TM

Auditing and Investigating Corporate Information

T

here are four key areas that need to be addressed
when reviewing, or protecting corporate information,
or data.
1. Securing a corporations sensitive information
2. Understanding the threats to that information
3. Setting alerts or red flags of intrusions or misuse
4. Defining a clear plan to respond to incidents

Firstly, securing your corporations primary asset, its
information (or sensitive data) which includes Personally
Identifiable Information (PII) - means being able to find it
easily, using targeted searches, collecting and or removing
it, when not in protected environments, and running regular
audits to ensure data leakage strategies are working.
In other words, knowing where your information is, and
being able to get at it !
Secondly, understanding the potential threats to this
information is numerous. The realization that the average
perimeter network defense is never enough, coupled with
the fact that, the majority of threats come from within an
organization, added to the sophistication of hackers today,
can leave IT professionals with sleepless nights.
The threats today are great, numerous, and growing along
with technology defense.
Setting alerts to these threats must be done from a
network wide view, instead of the old fashion “one machine
at a time” auditing. This means you must have clear visibility
to your network. You must run regular audits against file,
and email servers, laptops, desktops, and set parameters or
warnings that can be automatically flagged.
Lastly, it is critical to have a response plan, once a breach
has occurred. This is often overlooked or misunderstood in
large corporations. A simple overview plan could be1. Determine the exact scope of the incident (to limit cost
damage)
2. Secure PII within that scope of damage
3. Locate the source of the breach
4. Remediate/erase the malicious files or processes
5. Run regular scans, to ensure the clean up has been effective
6. Preserve all actions (or audit) for any potential future
legal actions.
The auditing and investigating of corporate information
comes down to ensuring PII resides
in authorized areas of the network,
determining the scope of any breaches,
and implementing proactive measures to
minimize risk or exposure.
For more information, please contact:
Carl Kimball, General Manager, Asia Pacific
Guidance Software, Inc
Phone: +65 6248 4527
Email: apac.sales@guidancesoftware.com

18

Carl Kimball

C

hanges to the listing rules for mining and petroleum
companies may pave the way for a flurry of IPOs in Hong
Kong and provide a lucrative avenue through which these
companies can raise capital in Asia.
“The new rules, which take effect on 3 June [2010],
ensure that investors are provided with material, relevant
and reliable information that meets globally recognised
standards,” said Fred Kinmonth, a partner with Minter

►► New listing rules – criteria

• To establish eligibility for initial listing under the new Chapter 18 rules, a company's
main activity must be the exploration for and/or extraction of natural resources
(including minerals and petroleum) and this must represent 25% or more of the
total assets, revenue or operating expenses of the company and its subsidiaries
• The company must also have a portfolio of resources identifiable under the
applicable international reporting standard, the JORC Code, NI 43-101 or the
SAMREC Code (Minerals) or PRMS (Petroleum). Companies that have only inferred
or prospective resources will not qualify
• The HKSE has also expanded its approved list of acceptable jurisdictions for listing
applicants, and Australia and Canada (British Columbia and Ontario) are now
included

china >>

In-house profession: a growing

E

ven amid difficult economic conditions, China's in-house
legal profession has still matured above and beyond
expectations. The increased complexity of the legal and
regulatory environment, along with generally tighter control
of costs, has provided a great opportunity for in-house
lawyers to demonstrate their strategic value.
While the 2010 ALB China In-house Survey found
that 68% of the polled in-house departments have less
than 10 legal staff, nearly half said their departments have
grown over the past 12 months. Sami Farhad, vice president
& general counsel of eLong.com, has a good vantage point for
the evolving profession in China as a US lawyer.
“Over time, as companies in China become larger, engage
in more complex financial transactions and have more
international exposure, businesses are becoming more
sophisticated and recognising that a strong in-house legal
team can support the healthy growth and development of the
company, while avoiding costly risks and disputes,” he said.
“Now, many in-house legal departments have built
up strong internal expertise in the areas of law which
significantly impact their companies. The perception of inAsian Legal Business ISSUE 10.6

NEWS >>

flurry of resources IPOs
Ellison in Hong Kong who advised the HKSE on the
amendments. “Eligible companies may now apply for a
primary or secondary listing on the HKSE under rules that
are clear and comprehensive.”
The new rules set out disclosure obligations and standards
for reporting resources and reserves, for valuing mineral and
petroleum assets, and for the qualifications and experience
of technical experts. The changes are expected to reinforce
Hong Kong’s attractiveness as a listing location.

“Eligible companies may now apply for a primary
or secondary listing on the HKSE under rules that
are clear and comprehensive”
Fred Kinmonth, Minter Ellison
Kinmonth said that a number of mining and petroleum
companies from resource-rich countries like Australia
and Canada are already expressing interest in launching
Hong Kong offerings. “Given the capital-intensive nature of
mining, mineral and petroleum companies seeking capital to
grow are increasingly looking to the HKSE and the HKSE
now has a solid set of rules to encourage that interest.”
Despite the financial crisis, 2009 was something of a bull
year for the HKSE: it led the world in terms of IPO funds
raised (US$32bn) and ranked fourth in total funds raised
behind the New York, Euronext, London and Australian
stock exchanges. ALB

force to be reckoned with
house lawyers as not doing interesting or challenging work
is now largely outdated.”
In addition to the steady increase in numbers, many
in-house departments now have more tiers of staff than
in the past. Consequently, in-house counsel roles have
expanded into new non-legal areas, such as compliance, risk
management and company secretarial responsibilities. ALB

Update >>

Financial
Where do most investors go wrong?

I

n my experience most investors who invest in a
business venture start out by paying a premium for the
anticipation of future earnings that may or may not
materialize as expected.
However, there are already established businesses that
have earnings and a history of consistent growth which
can be freely purchased on internationally recognized
exchanges.
First you need to place a reasonable value on the business
based on actual earnings and the anticipated growth of
those earnings in the future.
Then you should build in a margin of safety and only look
to invest in a business when you can do so at 50% or more
off its intrinsic book value.
For example, let’s assume ABC Computer Inc has the
following financials:• Current share price: $200
• Valuation price: $475 (Based on our proprietary valuation
model).
• Current earnings per share: $10.25
• Estimated earnings growth rate: 20% per year.
• Value of cumulative earnings per share in 8 years $202.93
In theory, if you owned the whole company you could
choose to draw 100% of the company’s earnings out of the
business, which in the above example would mean that
the actual earnings would more than cover what you paid
per share in 8 years. If you also invested at a 50% discount
then the potential return on your investment would be
significantly enhanced.
The above is an example of the type of proprietary
research we do on individual investments for our private
clients which we then combine with
a technical analysis methodology to
determine when to buy and when to sell.
For further information or to arrange an
exploratory no obligation meeting please
contact Brian Taylor.
Brian Taylor, Senior Investment Adviser
Horwath Financial Services Ltd
Tel: (852) 2511 8337
Email: brian.taylor@hfs.com.hk
Website: www.hfs.com.hk

Brian Taylor

►► The size of your in-house team
1-10
11-20
21-50
51+

68%
12%
13%
7%

►► Over the past 12 months your in-house team has
contracted by 1-20%
contracted by 21-50%
grown by 1-20%
grown by 21-50%
grown by 50+%
remained the same size
www.legalbusinessonline.com

Counsel
Partner
Head of global
litigation
Partner
Partner
Head of Asia

Global litigation

Managing partner
of HK
Head of legal India

Salans

Salans to double number of partners in China
Salans has made up its senior associate, Liu Wei, to
partner as part of its ambitions to grow its China
capabilities. Liu, who joined the firm in 2006,
is based in the Salans' Shanghai office. He will
focus on corporate, employment, real estate, tax,

King & Wood lures Clifford Chance's Beijing
chief
Rupert Li, previously the Beijing chief representative
and partner of Clifford Chance, has swapped his
partnership at the Magic Circle firm for a senior
management position as international managing
partner with domestic powerhouse King & Wood. Li
will split his time between Hong Kong and Beijing.
Apart from bringing additional technical expertise and
market connectivity to King & Wood's capital markets
and M&A practices, Li's previous experience as the
sole representative for Asia on Clifford Chance's
partnership council will also benefit King & Wood's
management and governance.
For Li, the single most important
motivation behind his decision to
leave the top-tier international
firm and join King & Wood is
the opportunity to be at the
centre of the firm's management
and decision-making function.
Rupert Li
“From my point of view, the most
pronounced difference between
my current and previous position is not 'local' versus
'international' but 'centre' versus 'outskirt'," he said.
Although a certain level of competition exists
between leading international and domestic firms,
Clifford Chance and King & Wood have fostered a
collaborative relationship through co-counselling
on a number of transactions for the same clients. Li
noted that his appointment with King & Wood will
increase the collaboration between the two firms,
rather than reducing it.

restructuring and insolvency work.
"Wei's promotion is part of our ambitious growth
plans for China. We intend to double the number of
China based partner this year by internal promotion
and lateral hiring. Wei is the first new partner who
will be joined soon by others," said Bernd-Uwe
Stucken, Salans' Greater China managing partner.

Allen & Overy

Norton Rose

One more for China in Norton Rose’s Asian spree
Former Allen & Overy of counsel Lynn Yang has
recently joined Norton Rose’s Shanghai office as
corporate and insurance partner. She will commence
her partnership in July 2010.
David Stannard, head of Norton Rose’s Asia
practice, notes that Yang’s appointment is part of
the firm’s aggressive business strategy for the AsiaPacific region. The firm launched its Asian hiring
spree last month, offering up to five banking and
corporate positions for its Beijing office.
Yang expects plenty of opportunities. “Financial
sectors – both transactional and
regulatory services – have huge
potential to develop in the next
few years in China,” she said.
“In-bound M&A activities will
also start to pick up this year.
Notably, international firms will
continue to play important roles
Lynn Yang
in major outbound investments by
Asian Legal Business ISSUE 10.6

NEWS >>

both industrial and financial institutional investors.”
Yang’s appointment will bring the total number
of partners across Norton Rose’s 13 Asian offices
to 44.

O’Melveny & Myers

Paul Hastings

Paul Hastings loses another senior lawyer in Asia
Andrew Hutton's departure to the Singapore office
of O'Melveny & Myers constitutes the latest in a
string of senior Paul Hastings defections. The firm
has now lost four senior-level lawyers from its Asia
practice over the past 12 months.
Earlier this month US securities expert Joe Sevack
left the firm for Troutman Sanders; partners Maurice
Hoo and Phoebus Chu both departed for Orrick;
and Etsui Doi left to become co-head of Foley &
Lardner's Tokyo office in June 2009.
Hutton, who was counsel at Paul Hastings, will
assume the same position at O'Melveny and will
be initially placed in Hong Kong, before relocating
to Singapore in early June 2010. In addition to his
time with Paul Hastings, Hutton also had stints
with Latham & Watkins and as general counsel of a
NASDAQ-listed resort development company.

The company has also appointed Munish Nagpal
as its head of legal for its global capital markets
business in India. Nagpal joins from the Singapore
office of Clifford Chance, where he was part of the
firm's India-focused capital markets team. Prior to
his time at CC, Nagpal enjoyed stints with Skadden
in Singapore, Fried Frank in New York and London,
and Amarchand & Mangaldas in India.

Norton Rose

Partner promotions keeps Norton Rose's Asia
focus on Singapore
The only Asia-based lawyers to feature in Norton
Rose's latest round of partner promotions are both
based in Singapore: KC Lye (dispute resolution) and
Daniel Yong (corporate/M&A).
As a qualifying foreign law practice (QFLP) license
holder Norton Rose is able to practice Singapore law
in certain areas, through the Singapore-qualified
lawyers the firm employs. The promotions of Lye
and Yong bring the number of partners in the firm's
Singapore office to 14.
The Singapore office has also been the beneficiary
of a number of transfers of Australian lawyers,
following the merger of Norton Rose and Deacons
Australia mid last year.

Linklaters

Greater China

Linklaters' Harvey promoted to global head of
litigation
Marc Harvey has been appointed as the head of
Linklaters' global litigation practice. Harvey, who is
currently the firm's co-head of Greater China, will
replace Françoise Lefèvre, who returns to full-time
client work.
Stuart Salt, the firm's
Asia managing partner, said
that Harvey's appointment
underscores both the importance
of Asia in the firm's global
strategy and the growing profile
of the region more generally.
Marc Harvey
"The fact that the leadership of
one of our major practice areas is to be based in this
part of the world emphasises the importance of the
region," he said.

Clifford Chance

Weil Gotshal

Weil Gotshal continues aggressive growth in
Asia with CC partner hire
John Fadely has joined Weil Gotshal & Manges as a
partner in its Hong Kong office. Fadely, who will join
the firm's global funds practice, comes from Clifford
Chance where he was a corporate partner in the
firm's funds group.
Fadely's appointment is further evidence of the
firm's aggressive growth strategy in Hong Kong.
Late last year Weil Gotshal boosted its corporate
practice with two lateral hires from Simmons &
Simmons (Henry Ong and Jasson Han), in addition
to entering into an alliance with Ong's firm, Henry
Ong & Co. Through this alliance the firm is able to
advise on Hong Kong laws.

Nguyen Thi Hong Anh
Citi

Citi India appoints GE general counsel and
Clifford Chance lawyer to top legal posts
Citi India has appointed former GE Capital (India)
general counsel Sandip Beri as its new country head
of legal. Beri, who has over 25 years' experience
in the institutional and consumer sectors of the
financial services industry, has also had stints at
Sidley Austin and a local Delhi-based firm.
www.legalbusinessonline.com

Vietnam: Indochine welcomes first female
partner
ALB Fast 30 firm Indochine Counsel has made up its
first female partner. Nguyen Thi Hong Anh, who as
a senior associate has led the firm's IP & technology
practice since its establishment in 2007, becomes
the firm's fifth partner overall.
The firm's managing partner, Dang The Duc, said
Nguyen's elevation is part of the firm's commitment

to growing its IP & technology
practice. Meanwhile, the firm has
also acted as Vietnam counsel to
East Guardian Asset Management
Fund (EGAM) on its acquisition
of 15% of the shares in HiPT
Group, a public company listed in
Dang The Duc
UPCOM and one of the country's
largest private IT companies.
Duc, who was the firm's lead partner on the deal,
said he expects that such transactions, although
rare at the moment, will become more common in
the year ahead as the country's IT infrastructure
continues to develop.

Leading US firms

Jun He

Jun He's triple whammy prelude to new US
office
Jun He has secured the service of three IP partners
from leading US firms, in preparation for opening a
new office in Silicon Valley. Two of the new partners
joining Jun He are James Zhu and Zoe Wang, who
previously served as Beijing and Shanghai managing
partners respectively of Seattlebased US firm Perkins Coie. They
were among the key members
establishing Perkins Coie's
Shanghai office, which opened
in 2006.
Both are US qualified lawyers and
registered to practice before the
James Zhu
US Patent and Trademark Office,
and both focus on patent-related
issues, but Zhu primarily services
the life sciences, medical device,
chemical and material sciences
sectors, whilst Wang prefers life
sciences, nanotechnologies, data
processing, and devices.
Steven Cui, the third new
Zoe Wang
partner in Jun He's IP practice
group, is admitted to the
California bar and also registered
to practice before the US Patent
and Trademark Office. He
joins from Jones Day's Beijing
office, where he was a counsel
practising IP law with an
Steven Cui
emphasis on patent procurement,
technology transfer, and portfolio
management. Before joining Jones Day in 2008, he
spent seven years as in-house at Genentech in San
Francisco, where he was the lead IP counsel for the
company's most promising drug products.
The firm, which established its New York office
in 1993, is finalising its licence application for the
Silicon Valley office and expects to complete the
process within one month.

21

News | regional update >>

Regional updates

CHINA

22

CHINA

Paul Weiss

Philippines

SyCip Salazar Hernandez
& Gatmaitan

SINGAPORE
Loo & Partners

Each month, ALB
draws on its panel
of country editors to
bring readers up to
date with regulatory
developments across
the region

China’s Policy on Further
Encouragement of
Foreign Investment
As a confirmation of China’s support of
foreign investment, the State Council
issued the “Opinions on Further
Improving the Utilization of Foreign
Investment” (the “Opinions”) on April
6, 2010.
With an objective to improving the
quality of foreign investment, the
Opinions suggest that “The Catalogue
of Foreign Investment Industry
Guide” would soon be amended to
encourage foreign investment in the
manufacturing of products utilizing
advanced technology, and the
development of the high-tech industry,
modern service industry, outsourcing
industry, environmental protection
industry and alternative energy. Certain
foreign-invested projects that fall
under the encouraged category would
also benefit from lower land prices.
Multinationals are also encouraged to
establish regional headquarters, R&D
centers, procurement centers, finance
management centers, settlement centers
and accounting centers in China.
In line with the macroeconomic policy,
foreign investments are encouraged
in the Central and Western regions.
Favorable policies will be introduced to
encourage foreign investors to invest
in the Central and Western China, in
particular those labor intensive projects.
With an aim to diversify the types
of foreign investment, the Opinions
suggest that foreign investors are
encouraged to invest in domestic
A-stock listed companies; establish
private equity funds and set up venture
capital in China.
Financial institutions will be directed
to provide more credit support to the
foreign invested enterprises, and these
enterprises are also encouraged to
launch public offering of stocks, issue

corporate bonds or medium-term bills
within China.
Lastly, measures will be taken to
improve the efficiency of the approval
and registration of foreign investment
enterprises. For example, for foreigninvested projects that fall under
the “Encouraged” or “Permitted”
categories, the total investment
threshold for these projects that
require central level approval will be
raised from US$100 million to US$300
million. Similarly, the formation of
foreign-funded enterprises in the
service sector (except financial and
telecommunications services) will be
examined and approved by the local
government, and procedures for the
settlement of foreign currency capital
by foreign-invested enterprise will be
simplified.
Although it may be awhile before the
implementing regulations and rules are
issued, the positive message of the State
Council through the Opinions do boost
the confidence of foreign investors to
continue to invest in China.
Written by
Jeanette Chan, partner
May Chan, Hong Kong
solicitor
Paul, Weiss, Rifkind,
Wharton & Garrison
Hong Kong Club Building, 12th Floor
3A Chater Road, Central
Hong Kong
Email: jchan@paulweiss.com
Ph: (8610) 5828-6300 or
(852) 2846-0300

Philippines

Protecting overseas
filipino workers
Republic Act No. 10022, which became
law on March 8, 2010, amended several
provisions of the Migrant Workers
and Overseas Filipinos Act of 1995
(Republic Act No. 8042) to provide
Asian Legal Business ISSUE 10.6

News | regional update >>

better protection for Filipino migrant and
overseas workers. Among the significant
amendments are the following:
First, the definition of an “overseas
Filipino worker” entitled to protection
under the law now includes overseas
Filipino workers who are legal residents
(although not citizens) of a foreign
country.
Second, the crime of “illegal
recruitment” has been expanded to
include the following prohibited acts:
(i) letting an overseas Filipino worker
acknowledge an amount greater than
that actually received by him as a loan
or advance; (ii) reprocessing workers
through a job order that pertains to
nonexistent work, or for work different
from the actual overseas work, or
work with a different employer; (iii)
influencing or attempting to influence
any person or entity not to employ
a worker who has formed, joined
or supported or has contracted or is
supported by any union or workers’
organization; and (iv) allowing a nonFilipino citizen to head or manage a
recruitment/manning agency.
Third, aside from illegal recruitment,
the law declares other acts inimical to the
interests of an overseas Filipino worker
as unlawful, including, among others:
(i) granting a loan with interest of more
than eight percent (8%) per annum
to an overseas Filipino worker, where
the proceeds are used for payment of
placement fees; and (ii) requiring overseas
Filipino workers to exclusively avail of
loans only from specifically designated
institutions, entities or persons.
Fourth, the law prescribes higher
penalties for illegal recruitment and
other prohibited acts.
Fifth, the payment of any compromise/
amicable settlement or voluntary
agreement on money claims, inclusive
of damages, shall be made within thirty
(30) days from the approval of the
settlement by the appropriate authority,
instead of four (4) months provided
under the old law.
Sixth, remittances of the overseas
Filipino workers are now exempted from
the payment of documentary stamp tax.
Finally, the law provides for
compulsory insurance coverage for
agency-hired workers and optional
insurance coverage for re-hires, name
hires or direct hires.
www.legalbusinessonline.com

Recent Changes to
the Securities and
Futures Act (Cap 289)
(“the Act”)
The Securities and Futures (Amendment)
Act 2009 (“SF(A)A”)was passed by the
Parliament on 19 February 2009. Since
then, the SF(A)A had been implemented
in stages. The following outlines several
amendments which took effect on 29
March 2010:• Compulsory acquisition applies
to Real Estate Investment Trust
(“REIT”) and Business Trust (“BT”)
Section 295A of the Act allows an offeror
who has acquired not less than 90% of
the units in REIT or BT to require dissenting
unitholders to sell their respective units
to the offeror. The offeror will be able to
acquire the minority units by making a
general offer to the dissenting unitholders.
The new provision operates in a similar
way as that of a compulsory acquisition
of shares under Section 215 of the
Companies Act (Cap 50).
• New statutory avenue to protect
the interests of REIT unitholders
Section 295C of the Act provides a
REIT unitholder with an opportunity to
seek judicial redress when (i) the affairs
of the trust has been carried out in a
manner oppressive to one or more of
REIT unitholders, or has been carried
out in a manner which has disregarded
the interests of one or more of the
REIT unitholders; and (ii) an act of the

manager or trustee of the trust has been
done or is threatened, or a resolution
of the unitholders has been passed or is
proposed, which unfairly discriminates
against or is otherwise prejudicial to one
or more REIT unitholders.
• New Prescribed Time Period for
Prospectus Registration
Pursuant to the Securities and Futures
(Offers of Investments) (Prescribed Period
and Prescribed Day for Registration
of Prospectus and Profile Statement)
Regulations 2010, Section 240 of the
Act has been amended to enable the
Monetary Authority of Singapore
(“MAS”) to register prospectuses and
profile statements from the seventh
(7th) to twenty-first (21st) day from the
date of lodgment with MAS. Prior to the
amendment, MAS could only register
prospectuses within the fourteenth (14th)
to twenty-first (21st) day of the date of
lodgment. This amendment is seen as a
move to expedite the process of an initial
public offering (“IPO”).
Apart from the reduction of the
minimum public exposure period, a new
IPO concurrent review process, known
as the streamlined review process has
been launched on 1 March 2010. The
streamlined review process attempts
to speed up the IPO in Singapore
undertaken by companies, REITs and BTs.
As compared to the current two-stage
process, an issuer may submit a draft
prospectus to MAS for a pre-lodgment
review simultaneously with the filing of
its listing application to the Singapore
Exchange Securities Trading Limited (the
“SGX-ST”). The prospectus submitted for
pre-lodgment review will not be subject
to further review during the public
exposure period unless there are new
developments or public comments that
have a material impact on the issuer.
Written by
Ms Wong Joy Ling and
Mr Nicholas Chang
Ms Wong Joy Ling, Foreign Counsel
Senior Legal Associate (Corporate
Practice)
Ph: (65) 6322-2234
Fax: (65) 6534-0833
E-mail: wongjoyling@loopartners.com.sg
and
Mr Nicholas Chang
Corporate Finance Executive
Ph: (65) 6322-2236
Fax: (65) 6534-0833
E-mail: nicholaschang@loopartners.com.sg
Loo & Partners LLP
88 Amoy Street, Level Three
Singapore 069907

23

Feature | IP rankings >>

ALB’s leading
IP firms: Asia

“To be able to instruct
someone who is a lawyer as
well as an electronic engineer,
scientist or biochemist is
important. It means we are on
the same page and it saves me
money − I don’t have to send
my engineers to train them up”
IP counsel

Singapore

24

Asian Legal Business ISSUE 10.6

Feature | IP rankings >>

►► Asia’s leading IP Law firms
Patent slowdown? What patent slowdown? Filing numbers in Asia buck the
global downturn
International applications filed through the PCT system may have fallen by
nearly 5% in 2009 but applications from China increased by more than 30%,
according to figures released by the WIPO. Elsewhere in Asia, filings from
Korea, Japan and Taiwan also increased. SIPO received more than 976,000
applications for patents last year, an increase of nearly 18% on 2008 figures.
There were 877,611 Chinese applicants for patents, representing a 22%
increase on 2008 numbers.
SIPO granted more than 580,000 patents in 2009.

firm
featured
DONALDSON & BURKINSHAW
Established 1874

►► China
Full service practices

Specialist IP firms

Boss & Young

Beijing Sanyou

Fangda

CCPIT

Hylands

Jeekai & Partners

King & Wood

Kangxin & Partners

Zhongzi Law Office

Liu, Shen & Associates

►► Hong Kong

DONALDSON & BURKINSHAW has one of the longest established and leading
practices in Singapore in the field of Intellectual Property.
Our Intellectual Property Practice comprises highly qualified patent and trademark
specialists, technical experts and professionals with impeccable academic
credentials. With several decades of experience in providing a full range of IP
services to multinational corporations and businesses, our professionals handle trade
and service marks, patents and designs protection and enforcement litigation as well
as complete management of IP portfolios, commercialisation and licensing of IP and
technology rights.

n a recent paper entitled ‘The Death of Big Law’, Professor
Larry Ribstein from the University of Illinois argued
that the business model on which large law firms have
for so long built their fortunes is teetering on the brink
of collapse. With specific reference to large US law firms,
Ribstein says that by increasing the leveraging of offices and
lawyers and through diversification into new practice areas,
large firms are creating a rod for their own backs. The more
a firm leverages its reputation, the harder it becomes to
ensure that the value of that reputation is maintained and
enhanced.
For Ribstein, the future of the profession
turns on a number of factors with boutique law
firms or firms that specialise in only one area
of practice. These firms, Ribstein contends, are
in the best position to deal with the immense
changes awaiting the legal profession. And
while Ribstein predicts the rise of boutique
Larry Ribstein
law firms to take place somewhere in the
Uni of Illinois
future, a look at Asia’s IP legal services market
demonstrates that these firms are already making their
presence felt − challenging the full-service firms for market

share, the biggest clients and the most
lucrative of work.
Unsurprisingly, boutique law firms
figure prominently in our annual
Guide to Asia’s leading IP law firms,
now in their third year. Where inhouse lawyers, IP counsel and industry
professionals once entrusted the
management of their company’s IP
portfolio to full-service law firms, they
are now more willing than ever to look
to firms who have chosen this practice
area to be their sole focus.
In a warning shot towards larger
firms in Asia, our respondents indicate
that this predilection will become more
prevalent in the years ahead. ALB
analyses why Asia’s specialist IP firms
are leading the pack and what fullservice law firms must do to catch up.

Morrison &
Foerster

A more commercial approach, greater
industry knowledge and quicker
turnaround were the most frequent
reasons cited by respondents, for the
use of specialist IP law firms over their
full-service counterparts. “These are
areas where smaller IP firms continue
to excel,” said one Singapore-based IP
counsel. “To be able to instruct someone
who is a lawyer as well as an electronic
engineer, scientist or biochemist is
important. It means we are on the same
page and it saves me money − I don’t
have to send my engineers to train
them up.”
Similarly, fee flexibility was noted as
a strength, and one which has become
more important than ever over the last

12 months. Specialist IP firms were,
according to a number of respondents,
more willing to look at capped fees,
delayed or deferred payments and
“provide advice that nine times out of
ten would appear on the bills of larger
law firms,“ in the words of one in-house
lawyer.
For some respondents, boutique and
specialists were preferred to bigger
firms because of their better attitudes.
Here, respondents suggested that
the relatively smaller fees generated
by IP-related work meant that there
was a tendency for some lawyers to
invest less time in maintaining and
cultivating relationships with clients.
“In my experience, smaller firms will
never think twice about giving 110% in
even the smallest or routine matters we
give them,” says one Taiwan-based IP
counsel.
“This is certainly not the case with
larger law firms I have used. Work will
go through a hundred pairs of hands
before someone even reads the brief.”
Another in-house lawyer notes, “when
general counsel are looking for outside
counsel the first thing they should do
is forget about giving big firms patent
prosecution − or anything else where
the fees are thin.”
Creative use of legal technology was
an area where boutique law firms were
noted as having made “strong progress”
over the last 12 months. Boutique firms
are embracing internal software such
as annuity agents, patent searching,
docketing and proofreading tools more
and “it’s showing in the calibre of

their advice,” according to one patent
counsel. They are also more willing to
use technology as a tool to communicate
with their clients more effectively and
efficiently. “Our external firm provides
us with access to an intranet through
which I can access the status of a
matter whenever I, or a member, of
my department wants,” said a general
counsel in Hong Kong. “It also reduces
my legal costs and saves time.”

Big firms battle for relevancy
Despite the inroads being made by
Asia’s growing cache of specialist
IP firms, to suggest that they have
completely eclipsed their full-service
counterparts in all jurisdictions across
Asia would be incorrect. In countries
like Japan, China, Taiwan and Hong
Kong, respondents located in bigger
firms report they are holding their own,
despite fierce competition. The reason is
their ability to handle contentious work
and the sheer size of their IP teams.
In-house lawyers and IP counsel
in Japan and Taiwan suggested that
larger domestic and international law

firms were better placed to handle not
only the litigation but also the day-today management of their IP portfolios
than specialist law firms. In Hong
Kong, respondents expressed the same
views, although for them it was the
larger firms’ ability to just “black and
white IP issues” that put them on top.
“Firms that can handle more than
just vanilla work is what we look for,”
says one respondent. “We look for an
ability to handle multi-jurisdictional
work and a firm that has the resources
to deal with the heavy-duty work,
things like discovery in litigation and
the IP issues that arise in the context
of acquisitions, joint ventures and other
big transactions.”
With the levels of IP litigation
increasing among once litigation-shy
Asian companies, larger IP practices
are well positioned − especially
given that many already act for the
more litigious companies in Asia.
These include Korean companies
like Samsung and LG, Japanese
heavyweights like Panasonic and Sony
as well as Taiwan’s biggest − BenQ

Firm overview
The firm was established in 2002 by two senior members who decided to leave a large firm environment
to create a more focused, efficient and responsive practice. Based on the reputation and capabilities of
the founding members, as well as the established trust and loyalty with their clients, the firm was
immediately active representing multi-national clients. The firm’s clients are among the most recognized
names and leaders in various business sectors, such as software and technology, retailing, luxury goods
and fashion, energy, etc.
Since its establishment, the firm has continued to grow, a result of the firm’s uncompromising emphasis
on maintaining its reputation for the highest level of service, professionalism and integrity. This
philosophy and commitment has been essential in developing and servicing the firm’s prestigious list of
clients, whose needs are sophisticated and whose matters have global impact.
The firm is proud of its approach and reputation for nurturing very close and personal relationships with
its clients, the foundation of the firm’s ability to know its clients and thereby serve their needs more
effectively and efficiently.

Intellectual property practice
The firm has a strong and diverse practice in all aspects of intellectual property. It is very active with
both domestic and international prosecution practice in both trademarks and patents, as well as related
disputes and administrative proceedings. Aside from prosecution matters, the firm and its members
have become particularly well-known for its capabilities in the areas of litigation, anti-counterfeiting and
internet related matters.
In the area of anti-counterfeiting and enforcement, the firm has developed a very strong reputation for
its effective and creative programs in combating many difficult problems in Korea. The firm represents
many brand owners and manages among the most active and effective anticounterfeiting and
enforcement programs in the country.
The firm is also very active with domain name disputes, successfully reclaiming domain name
registrations from cyber-squatters for trademark owners. Tae-Yeon Cho serves as outside counsel for
the Internet Address Domain Name Dispute Resolution Committee, the government body that
administers Korean domain name disputes. Another member of the firm, Ik Hyun Seo, serves as a
panelist for WIPO. The firm’s litigation practice is particularly active. The firm has successfully obtained
several landmark decisions for its clients and is at the forefront of new developments in Korea.
Languages spoken: Korean, English and Japanese
Number of lawyers: 12
Contacts: Tae-Yeon Cho, Ik-Hyun Seo
www.legalbusinessonline.com

29

Feature | IP rankings >>

►► Singapore
Full service practices

Specialist law firms

Allen & Gledhill

Amica Law

ATMD Bird & Bird

Donaldson & Burkinshaw

Baker & McKenzie. Wong
& Leow

Ravindran Associates

Drew & Napier
Lee & Lee
Rodyk & Davidson

►► Taiwan
Full service practices

Specialist law firms

Formosa Transnational

Deep & Far

Lee and Li

Saint Island International
Patent & Law Office

Tsar & Tsai

TIPLO
Tsai, Lee & Chen

30

and Quanta. “With the amount of
income that Asian companies derive
from patent royalties increasing,
there will be more patent litigation
happening around Asia. To date it has
been Japanese, Korean and Taiwanese
companies that have been the most
active, but Chinese and Indian
companies will become larger players
here over the next year or so,” said
a Hong Kong-based general counsel,
adding that many companies have
shown a preference for setting a US
venue, giving US-based international
firms with an Asian presence an
advantage.
Here, the selection of the largest
firms is considered the safest option.
Another respondent says “in-house
lawyers are now playing a more direct
role in managing IP litigation. They
have shown in the past that they prefer
working with the most high-profile
litigators in the region. At the moment,
most of these are working for the
largest law firms.”
The same respondent, a general
counsel at a US electronics company

based in Singapore, adds that in
choosing a full-service law firm in
this area, many general counsel are
erring on the side of caution. “Some
specialist and boutique practices do
have the personalities and capacity to
do this type of work, but many are still
untested at this level.”
But just as in other areas of practice,
while the largest companies will
invariably hire the largest law firms
smaller companies, some of whom are
engaged in just as complex and highvalue IP litigation, are increasingly
looking to smaller law firms. Their
rationale here is that they would rather
have the same firm deal with their
patent prosecutions and any ensuing
litigation. “It provides good continuity
of service and it saves time and costs
to use lawyers who know our portfolio
inside out,” said one respondent.

management and with bigger firms
handling large IP litigation and the
more commercial work in the area?
While respondents to our survey agreed
that Asia’s IP legal services market
is more segmented than it ever has
been, they also note that a coalescence
of factors − including the impact of
the financial crisis − have made the
industry more competitive.
But there is still widespread
recognition that all firms, whether
specialist or full-service, must improve
their levels of service if they are to
increase their market share. For larger
firms, areas for improvement include
leveraging the commercial nous from
elsewhere in the firm − something
mentioned often by respondents from
mid-sized companies in the region.
“When we hire a corporate firm, we
want them to act less like our ‘external’
counsel and more like our internal IP
counsel, “said one respondent.
Respondents note that this was a
particular strength of specialist law
firms, but the challenge for smaller
firms was to increase their bandwidth.

Here, in-house lawyers and IP counsel −
while cognizant of the fact that “smaller
firms generate smaller fees” − were
nonetheless looking for them to invest in
increasing their manpower. “We would
use smaller firms across the board if
we were convinced that they had the
resources at hand to do everything,” said
the legal head of an Indian IT company.
Just as the IP legal services market
has undergone changes over the last
12 months, so too has the complexion
of many in-house legal teams changed.
While many of Asia’s companies have
bolstered their legal resources at
the disposal of their IP departments,
many of those are still headed by nonlawyers. The role that full-service and
specialist law firms alike have to play
here is critically important.
While having lawyers who have an
intimate knowledge of the industry will
remain a mainstay for delivery of legal
services in the area, law firms that
are able to demystify legal issues for
clients will be best placed to increase
their share of an area of practice that is
growing exponentially. ALB

Activity across Asia’s building
and constructing sectors may
have slowed considerably
during 2009, but the innate
resilience of the sector’s
major players coupled with
government stimulus has seen
projects and deals rebound
strongly in 1H 2010

B

uilding and construction
activity may have stalled, or in
some cases come to a complete
halt as a result of the financial
crisis, but government stimulus coupled
with the innate resilience of many
of the sector’s major players ensured
that the ‘GFC-effect’ was relatively
short-lived, for those involved in this
sector in Asia. The number of highvalue, high-profile projects completed,
commenced or re-commenced over
the last 12 months has reinforced the
region’s status as one of the industry’s
hottest destinations. It is this work on
offer, plus the promise of much more
to come over the next decade, that
has building and construction lawyers
already planning for the growth of their
practices.

The GFC-effect

The Middle East:

Next battleground for
Asia’s building companies
34

At the height of the financial crisis,
many in the industry predicted the
inevitable downfall of major industry
players. But for a variety of reasons,
this has not occurred. Financing
was, of course, still hard to come by –
evidenced by the number of projects put
on hold or stalled last year. Yet when
compared to this sector in the US and
Europe, Asia has much to look forward
to. Paul Wong, a partner with Rodyk &
Davidson in Singapore, says that the
low levels of attrition in the industry
are indicative of the innate strength
of the building and construction sector
in Asia. This is a strength which in
no small part it owes to the troubles
encountered during the Asian financial
crisis, which decimated the region at
the turn of the last century.
“The real turning point for the
building and construction industry
and for contractors in particular was
the Asian financial crisis. [The sector]
underwent drastic changes which
Asian Legal Business ISSUE 10.6

Feature | building & construction >>

saw the weaker players
weeded out,” he says.
“Only those with the
financial stamina to
weather the economic
storm remained and
came into the most
Helen Yeo
recent crisis in a very
Rodyk &
Davidson
healthy state.”
Helen Yeo, managing partner of
Rodyk & Davidson, adds that the
‘healthy state’ of the industry coming
out of the Asian financial crisis
has insulated it somewhat from
the harshest impacts of the recent
downturn. “Prior to the recession,
construction companies were working
through a period of prosperity and
when the crisis hit, it was met with a
controlled and calm response… the fact
that it did not last as long as people
had expected also helped,” she said.
If the strength of Asia’s building
and construction sector going into
the crisis has assisted in keeping
projects going during the GFC, then
regulatory changes and governmentbacked stimulus have undoubtedly also
played a role. In regard to the latter,
governments across the region moved
to stave off domestic economic crises by
pumping a collective total of US$40bn
into, inter alia, infrastructure, energy
and natural resources projects over the
past 12 months.
Similarly, legislative changes in
jurisdictions such as Singapore have
made it easier for contractors arguably
the most exposed to
economic downturns, to
collect payment. “In Hong
Kong we are now in the
early stages of a decade
of government stimulus
and procurement,” says
Vincent Connor
Vincent Connor, the
Pinsent Masons
Asia managing partner
www.legalbusinessonline.com

of Pinsent Masons. “Private sector
infrastructure work definitely slowed
down during the very worst of the
financial crisis. For example, Macau
casino projects were put on hold but
things never came to a complete halt.
Now we have started to see projects
in Hong Kong and Macau, both in
the private and public sector, come on
stream. We have at least four or five
years of solid work still ahead of us,” he
adds.
But even though the impact of the
financial crisis on Asia’s building and
construction industry has been minimal
when compared to the US, Western
Europe and even the Middle East,
the complexion of the industry, client
demands and its major actors have
changed drastically.

“Prior to the recession,
construction companies were
working through a period of
prosperity and when the crisis
hit, it was met with a controlled
and calm response”
Helen Yeo

Rodyk & Davidson

What clients want
What clients in the building and
construction industry are demanding of
their external lawyers is not inherently
different from what clients in other
sectors want: greater flexibility in
fees, faster turnaround time in advice
and more commercially savvy counsel.
But while these constants remain
unchanged as a result of the financial
crisis, just how lawyers are being
expected to prove their value has
changed.
The crisis has put the onus on the
region’s building and construction
lawyers to take a more specialised
approach. Here, lawyers note the
increasing importance of understanding
procurement routes and the technical
demands of projects, and having
knowledge of the scope of negotiations
with local regulators on deals are
key. The fact that most of the region’s
projects are still being put out to tender
seems to suggest that few law firms
have been able to develop this suite of

ith the global financial crisis
(GFC) well and truly behind
it, Singapore’s building &
construction industry has
seen impressive levels of activity in the first
half of this year and the outlook for the
remainder of 2010 is just as rosy. Rodyk &
Davidson’s construction group has been
heavily involved in the industry’s post-financial
crisis renaissance and is ideally placed to
assist developers, construction companies;
government bodies, contractors and sub
contractors manage their projects in the Lion
City and across the Asia pacific region.

All-round expertise
Boasting a dedicated team of 15 lawyers
and five partners, Rodyk & Davidson’s
construction practice is not only one of the
largest in Singapore, but also one of the
most experienced. The firm’s construction
group which advises on the full-spectrum
of work has been a core area of the firm
since 2002, when the historic merger with
HelenYeo & Partners, led by Rodyk’s current
Managing Partner brought in among other

36

strengths, strong, highly acclaimed real estate
development and construction practices. At
the front end, the firm advises on and reviews
tender documents as well as the drafting of
pre-bid and joint venture agreements. Rodyk
& Davidson’s lawyers are often called on to
assist construction professionals to adapt and
change standard forms such as the SIA and
CIBD standard form contracts to deal with
the latest developments in the law, as well as
advising on drafting or reviewing agreements
for consultants and project managers. At the
contract administration stage, the firm advises
on issues arising in the course of construction
such as the issuance of payment certificates,
liquidated damages for delay and extension
of time, construction-related insurance
issues and issues arising from insolvency of
contractors and owners.
“Our group’s experience is extremely wideranging and one of the most comprehensive
in Singapore,” said Paul Wong, a partner in
Rodyk & Davidson’s Construction Group. “The
five partners bring their extensive experience
to bear on each of the matters we work on
and are ably assisted by other lawyers from

within the group and across our firm.”
But if Rodyk & Davidson’s experience at
the front-end of the construction process is
impressive, then its credentials at the backend are just as notable. Here, the firm’s
construction group, which boasts a collection
of renowned commercial litigators and Senior
Counsel Philip Jeyaretnam, regularly acts on
commercial litigation, arbitrations, mediations
and other dispute resolution proceedings that
arise in the construction industry. The firm has
acted on disputes arising from international
construction projects including joint ventures
and investment issues, dispute s between
main contractors and subcontractors and also
disputes involving specialist engineering and
architectural issues such as soil mechanics, soil
settlement and complex industrial structures.

Strong back-end credentials
Wong, who acted with Philip Jeyaretnam for
Nishimatsu Construction on one of Singapore’s
most high-profile construction disputes—
the collapse of Nicoll Highway—said the
construction team’s grounding in commercial
litigation and contentious work gives them a
Asian Legal Business ISSUE 10.6

Firm Profile

Rodyk & Davidson LLP

Construction practice
unique understanding of the industry and sets
them apart from others in Singapore.
“What Rodyk & Davidson’s construction
group offers is unique. Our five partners are all
experienced commercial litigators who know
the industry,” Wong said. “When our clients
go into a project they know they will get expert
advice on the entire range of issues, not just
pure construction advice. Our commercial
litigators are experts in insolvency, banking, and
insurance and regulatory issues in addition to
being very knowledgeable about construction.”
And having partners who are just as wellversed in contentious matters present at the
start of projects couldn’t be more important in
the construction industry where there is also a
high chance of projects falling into dispute.
“Our team works hard with clients at
the commencement of projects not just
to accurately reflect the terms required to
manage the construction process efficiently
but also to ensure effective dispute
avoidance,” said Wong. “Of course, one can’t
always guarantee that disputes will not occur
in the construction industry, but if disputes do
occur clients can rest assured knowing that
we have the skills and experience to be able to
handle them.”

Industry focus
While being able to assist clients at the
front and back end are essential skills in the
repertoire of every construction lawyer, it
is their level of commercial savvy, technical
knowledge and industry experience
that separates the ‘good’ practices from
the ‘leading’ ones. Rodyk & Davidson’s
construction group most certainly falls into
the latter category-something perfectly
evidenced by the team’s impressive deal list
which includes mandates on some of the Lion
City’s most complex and high-profile deals.
For instance, the firm was counsel to the
Singapore Ministry of Education in its ‘Five
Schools’ PPP project. It is advising on the
construction of the new Khoo Teck Puat
Private Hospital as well as the building of the
Republic Polytechnic Campus in addition to
advising numerous construction companies
and contractors on the extension of
Singapore’s Mass Rapid Transit (MRT) system.
“We don’t just have a practice that does
construction,” said Wong. “We are an
www.legalbusinessonline.com

industry-focused practice. Our lawyers are
able to unpick and handle the most complex
of issues in the construction industry quickly
and effectively and having acted for some
of the largest private and government-linked
stakeholders in the sector means we have a
very close and detailed understanding of the
commercial, strategic and economic issues
affecting the industry.”

Building for the future
Not content with its already high-profile in
the construction space, Rodyk & Davidson
plans to deepen the breadth and expertise
of its practice in the immediate future. Paul
Wong says this involves further aligning the
firm’s construction practice more closely with
its award-winning Real Estate practice as well
as better leveraging the firm’s international
arbitration experience. As Wong points out,
“With Singapore fast becoming a hub for
international arbitration, construction is fertile
ground for arbitration work. In addition we
have a very strong project finance practice
and we are able to offer this expertise
throughout the ASEAN region to help clients.”
Training is always a priority at Rodyk,
and Wong says part of strengthening the
depth of its practice, is the firm’s continuous
investment in its young lawyers to enable
them to specialize in the front and backend work: “This will ensure that we
continue to have the resources to work on
the largest projects both in Singapore and
internationally,” Wong said. It is no wonder
that Rodyk, Singapore’s oldest law firm and
one of the largest with 150 lawyers is excited
about celebrating its 150th year in 2011.

Rodyk, a leading Singapore law firm with an active
regional practice and an office in Shanghai, celebrates
its 150th anniversary in 2011, a century and a half of
practical advice and effective representation at the
commercial crossroads of Asia.
Rodyk & Davidson LLP
80 Raffles Place #33-00 UOB Plaza 1 Singapore 048624
Telephone +65 6225 2626
Facsimile +65 6225 1838
Email mail@rodyk.com

►► All round expertise:
Rodyk & Davidson’s Construction
credentials
PPP:
• Acted as the Singapore legal counsel for the
Singapore Ministry of Education, which launched
a PPP project for the construction, operation
and maintenance of five schools using the PPP
procurement method
• Acted as Singapore legal counsel for the
Singapore Management University in respect of
a PPP project for the construction, operation and
maintenance of student accommodation using
PPP procurement method
• Acted as Singapore legal counsel for bidders in
respect of the Singapore Sports Hub PPP project
Projects & Project Management:
• Advising on the building of the new Khoo Teck
Puat Hospital (est. project value S$450m), from
project inception, including documentation for
selection of project managers, consultants,
contractors and subcontractors, and
management of project risks
• Advising on the building of the Republic
Polytechnic campus (est. project value
S$350m), from project inception, including
documentation for selection of project managers,
consultants, contractors and subcontractors, and
management of project risks.
• Advising major Singapore shipyard-contractor on
the development of an oil rig (central processing
platform, Living quarters platform, Wellhead
platform) under Engineering, Procurement,
Construction (EPC) type contract in an offshore
area developed jointly by 2 foreign governments.
Disputes:
• Acted for Boustead as developer and main
contractor in relation to long-term sand supply
agreements affected by the Indonesian sand
export ban, achieving a successful outcome by
mediation after issue of proceedings.
• Acted for Nishimatsu Construction in the collapse
of Nicoll Highway, resulting from tunnelling
works for the construction of the Circle Line
mass rapid transit. This remains the largest
construction accident in Singapore’s history.
• Acted for owner in arbitration against designer
and builder of a cement silo in Singapore which
suffered catastrophic damage arising from design
and building errors
• Acted for a major US chemical industry MNC in a
claim against its Japanese contractor for process
defects in its Singapore plant
• Acted in a Singapore arbitration between bored
piling contractor and main contractor of one
of the contracts for the construction of the
Singapore MRT Circle Line;
• Acted in an arbitration between specialist
subcontractor and main contractor on sand
compaction for land reclamation.

37

Feature | building & construction >>

skills to most clients’ satisfaction.
But these developments run parallel
with clients’ demands that lawyers be
more involved in projects. The lawyers
interviewed said they are now more
likely to be engaged as ‘project counsel’
rather than just brought in to advise on
one part of a deal.
“The demands we see clients making
now are not necessarily a direct result
of the financial crisis, but more about
clients focusing more closely on risk
management for the entire duration of
their projects,” says Wong. “They are
looking to ensure that legal issues are
dealt with at each stage of projects,
rather than have things end with long,
protracted and costly disputes.”

Asia’s construction heavyweights go
international
One of the most salient trends seen
in Asia’s building and construction
industry over the past 12 months has
been the increasing international
activity of Chinese construction
companies. Not simply satisfied
with handling mega-projects on the
mainland, companies like China

top ten international contractors −
has seen 128% growth in its overseas
revenues for the first half of 2009
(US$1bn). Some of the
bids it won last year
included building roads
in Fiji, Ethiopia, Ghana
and Gabon, and railway
restoration projects in
Venezuela.
“Chinese construction
Richard Lee
Bae Kim & Lee
companies are fastbecoming a force to be
reckoned with internationally,” says
Connor. “They are bidding against and
winning projects from companies with
deeper roots in the industry and this is
a trend which will only continue in the
years ahead.” But Connor does concede
that Chinese companies face stern tests
from East and South Asian rivals. This
battle is perhaps most evident in the
Middle East, where Korean contractors
are currently ahead. Here, companies
like SK Engineering & Construction
have cast a conspicuous shadow
over the region’s construction and
contracting markets, by winning rights
to build oil refineries, petrochemical

“This is a very good time for firms to build up
their practices in this area. With all of the planned
development in the pipeline, you can clearly see the
prospects of growth for at least the next five years”

Paul Wong

Rodyk & Davidson
Railway Group, China Railway
Construction Corporation and China
State Construction Engineering
Corporation have significantly
expanded their global credentials by
beating their more experienced and
established European counterparts
to mandates, on some of the world’s
largest construction projects.
A quick glance at the latest statistics
from the Engineering News-Record
(ENR) shows 50 Chinese companies
made it into the 2009 Top 225
International Contractors ranking.
Their total revenue from overseas
markets reached US$43.2bn in 2008
– a stunning 90% year-on-year growth
rate. For example, China Railway
Group −the world’s second-largest
construction contractor by total
contracting revenue and one of China’s

38

plants and nuclear power stations.
“The current Korean success in the
GCC is the result of more than 30 years
of effort,” says Richard Lee, who
specialises in Middle East work for Bae
Kim & Lee. “Korean contractors have
been working towards this moment
since the 1970s when they first started
to win major civil engineering projects
in the region.” And even though Lee
admits Chinese companies are catching
up, he says that “the Chinese will take
a lot less time to do the same thing.”
Others suggest that the fact that
Chinese companies are yet to prove
their credentials in the region means
this may not happen either as quickly
or in the form that many are expecting.
Woo Sang-Ryong, the president
of GS Engineering & Construction
in the Gulf, explains further. “The
Asian Legal Business ISSUE 10.6

“Chinese construction companies
are fast-becoming a force to be
reckoned with internationally.
They are bidding against and
winning projects from companies
with deeper roots in the industry
and this is a trend which will
only continue in the years
ahead”

Beijing

2008 revenue (US$m)
international
7,671

2008 revenue
(US$m) total
7,671

Beijing

5,859

25,966

Beijing

3,523

27,659

Beijing

3,081

3,858

Beijing

1,957

32,417

Beijing
Beijing
Beijing

1,804
1,621
1,373

8,923
1,672
23,314

Beijing
Beijing

1,338
1,083

34,548
1,233

Source: ENR’s 2009 Top 225 International contractors

problem [with Chinese and Indian
EPC contractors] at the moment is
with quality and project management
capabilities,” he says. “You need to
understand that with Middle Eastern
clients it is not just about money, it is
about value for money.”
Woo says that in their eagerness to
catch up with more established players
in the Gulf, Chinese EPC contractors
may well partner with Japanese, US
and European EPC
contractors, who have the
core technology and prequalifications for things
such as process plant
contracts.
Hong Kong provides
an interesting contrast
Paul Wong
Rodyk &
to the situation above
Davidson
where here, lawyers
observe that the reverse is occurring;
international contractors are entering
the domestic market with a frequency
www.legalbusinessonline.com

never seen before. “International
contractors are winning rather large
packages in Hong Kong and this is
very significant,” says Connor. “If we
take a step back 12 months, these
jobs would have been snapped up by
old local players so it is definitely
interesting to see new blood in the
sector. It is a win-win situation: it
creates local jobs and also fills capacity
gaps in terms of what local contractors
could do and the requirements of
projects.”
These seemingly contrasting trends
underline the dynamism of Asia’s
building and construction markets and
highlight the opportunities on offer for
law firms. As Rodyk’s Paul Wong points
out, “this is a very good time for firms
to build up their practices in this area.
With all of the planned development
in the pipeline, you can clearly see the
prospects of growth for at least the next
five years.” ALB

39

profile | managing partner >>

40

Asian Legal Business ISSUE 10.6

profile | managing partner >>

alb/Aderant 2010 managing partnerS series

David Fagan, Clayton Utz

Frankly speaking…

Clayton Utz chief executive partner David Fagan has never been short of a well-turned phrase or two on
what makes the industry tick. He speaks with ALB’s Renu Prasad on what the future holds for the firm

I

t might just be a touch of that
fabled Clayton Utz self-assurance,
but David Fagan is feeling quietly
optimistic. “We are very confident
about the firm. What we’ve seen is
that the partner group has been very
energised by what’s happened and is
very focused on making sure the firm
powers ahead,” he declares.
Confidence, of course, has always
been key to the Clayton Utz persona.
That is precisely why February’s raid
by Allen & Overy created such a stir,
prompting ironic suggestions that
perhaps the hunter had finally become
the hunted. But hearing Fagan’s
relaxed commentary on the matter,
one gets the impression that he is not
feeling particularly vulnerable. “We
wish the partners that have left all the
best – they made a choice about the
direction they want to pursue,” he says.
“Frankly we’re not overly concerned
by the way in which the resignations
happened – better for it to happen
quickly rather than to be drip-fed over
weeks.”
Clayton Utz grew revenues by
about 5% in 2009 to A$490m, but it has
budgeted for a small decline for FY2010
to A$470m – a budget which has thus
far remained largely on track. “The
litigation and major projects group had
a stellar year in FY2009,” says Fagan.
“Litigation has been quieter over the
last eight months but we predict that
the group will be very busy over the

www.legalbusinessonline.com

next six to eight months.” He says
that the signs are also positive for
transactional activity, although it is
still too early to assess the true state of
the market.

Hong Kong

March has brought the surprising
announcement that Clayton Utz will
be opening its first offshore office in
Hong Kong. The two-partner office
will be led by Glenn Haley, who most
recently headed up Deacons’ Hong
Kong construction practice, and
Clayton Utz partner Colin Dodd, who
has been based in Hong Kong for a
number of years. The office will focus
on construction and major projects
and international dispute resolution,
although expansion into other areas is
not being ruled out.
The situation is not unlike the
way Mallesons first entered the Asia
market with the recruitment of local
construction lawyers David Bateson
and Paul Starr, who brought across
their teams from Hong Kong firm
Denton Hall & Burgin. Mallesons,
however, arrived in Hong Kong in
1989, which raises the question of why
Clayton Utz has waited 20 years to
follow suit. Could this be a shift away
from the traditional relationshipsbased strategy employed thus far?
Fagan says that it isn’t. “This move
doesn’t derogate from what we’ve done
with Lex Mundi or PRAC – it’s a logical

extension of the construction and major
projects work we’ve done in Asia,” he
says. “We remain committed to our
relationships with local Hong Kong
firms. In fact, we expect there will be
more opportunities to work with local
firms in the region, as the result of our
having a presence on the ground in
Hong Kong.”
The firm signed off on the Hong
Kong office last October after the
opportunity presented itself to form
an association with Glenn Haley.
The decision was driven in part by
the growing international focus of
the construction and major projects
practice. “No doubt in certain sectors
clients are globalising and looking for
more global solutions,” says Fagan.
“Construction and major projects is
an area where we do a lot of work
internationally and it made sense to
take that next step.”

Running a tight ship

Clayton Utz has traditionally had
a highly profitable practice, with a
margin which is understood to be
about 47%. Fagan prefers not to
comment directly on this figure, but
says that an efficiently run firm should
be able to maintain a margin of at
least 45% in ordinary circumstances.
Clayton Utz has been able to maintain
its margins by generating strong
revenue growth and reducing its fixedcost base.
41

profile | managing partner >>

“We have not allowed the
fostering of any culture of
entitlement within the partner
group – partners are expected
to perform and contribute like
everyone else. Our partners
understand that over time, how
they are rewarded must reflect
what they put into the firm, not
simply in dollar terms but in a
holistic sense ”
David Fagan

Clayton Utz

42

Some of the steps the firm has
taken should prove instructive for
others. Recent reforms to systems
for collecting information on
disbursement recovery are a case in
point. “We realised our system to track
disbursement recovery cost more than
the amount actually recovered – so we
negotiated the cancellation of different
[software] licences to ensure that we
didn’t incur that cost and we were able
to pass that saving on to clients by not
charging for certain disbursements,”
says Fagan. Other measures including
moving staff performance reviews and
some training online, and the firm is
always keeping an eye out for new ways
to “re-engineer” processes.
“We have huge infrastructure in
relation to email and document storage
systems – should we move to more
external Clayton Utz-hosted service
providers such as Google mail?” asks
Fagan hypothetically. “Obviously there
are confidentiality and privilege issues,
but over time you expect to see cheaper
solutions and firms need to be looking
constantly at these kinds of issues.”
As well as ensuring the firm
runs efficiently, one of the biggest
challenges of the CEP role is effective
partner management. Fagan says the
firm’s success and ability to remain
competitive depends on it. “We have not
allowed the fostering of any culture of
entitlement within the partner group
– partners are expected to perform
and contribute like everyone else,” he
says. “Our partners understand that
over time, how they are rewarded must
reflect what they put into the firm, not
simply in dollar terms but in a holistic
sense.”
And the rewards are there for
partners who do perform. Despite a
strong increase in revenue, the number
of equity points on offer has remained
steady in recent years and the firm is
a supporter of the lock-step principle
of sharing profit equally. “We like the
concept of a lock-step and the teamwork
between partners that this involves,”
says Fagan. Half of the partnership
is structured into what is referred to
as “black box” teams, which report
financially as a single group ranging
from two to 15 partners in size.
“The partners in each group have a
significant degree of autonomy as to
how they manage their practice and

allocate responsibility. We’ve found
that’s been a motivator for a more
team-oriented behaviour,” says Fagan.

Show me the money

Given increased revenues last financial
year, some suggest that the firm’s
salary freeze was an inappropriate
response to the financial crisis.
However, Fagan points out that the
decision to implement the freeze
was taken at a time when dire
economic predictions were being made
for FY2010.
“Obviously we know in hindsight that
the outcome was far more benign than
anticipated,” he says. “But if you were
looking at it in March 2009 there was a
high degree of concern as to where the
economy was going. We were budgeting
for lower revenue and increased
competition, and the general view was
that it was going to be a rocky road.
I would defy anyone to look at that
March 2009 period and say that they
were prepared to predict the outcomes
that did actually materialise.”
The point was driven home when he
visited the US in February 2009. “A
number of firms were talking about
taking their cash account balances
out of the major banks because they
feared a collapse,” Fagan recalls. “Now
if you’re in an environment like that,
common sense dictates you take a
prudent approach.”
Fagan says that the firm is conscious
of the loyalty and support shown by its
lawyers and staff and has announced
a thawing of the salary freeze. “Our
intention was always that salary freeze
would only last for a year and in fact it
will have lasted for less – a full three
months head of the time we would
normally do those reviews.” ALB

►► Time of transition

• After nine years in the CEP role, Fagan will hand
over the reins to CEP-elect Darryl McDonough
in July.
• Fagan will remain part of Clayton Utz after the
handover, focussing on his banking and financial
services practice.
• McDonough, currently a partner specialising
in corporate and M&A, has been with the firm
since 1993.
• The appointment to the CEP role will be for an
initial term of three years.

s Malaysia enters the second
half of 2010, the situation
facing its burgeoning legal
services market is not
dissimilar to that facing lawyers in
other parts of the region. 2009 was a
slow year by almost every measure.
Capital markets activity was deflated,
corporate transactions were few and
far between and finding financing
for those deals that did go ahead
was likened to ‘finding a needle in a
haystack.”
But the New Year brought with it
new opportunities. Impressive 2009
gains saw the country cement its
position as the region hub for Islamic
finance, and the deals pipeline is
once again flowing freely. So much
so that a number of law firms ALB
interviewed for this special report
expect to register improved revenue
and headcount growth. Yet while
their short-term growth is assured
by Malaysia’s domestic economic
renaissance, law firms realise that in
the long term they must look beyond
the expansive Malay peninsula.

Exporting Islamic finance: a growth
path for Malaysian law firms
Islamic finance, a staple of the
Malaysian economy for much of the
last decade, continues to keep law

firms busy. The last decade may, in
the long run, be looked upon as the
year when the country came into its
own and truly cemented its position as
the region’s hub of Islamic finance. It
is the next decade – and the very real
possibility that Malaysia may become
the focal point of Islamic finance
globally – that has lawyers in the
country enthused.
Here, it is worth highlighting that
in the first quarter of this year,
Malaysia’s companies far outstripped
their Gulf counterparts in sukuk
issues claiming a market share of close
to 60% (see box, p46).
Volume is of course important. But
where Malaysia is really making
inroads is in the complexity of deals
that are coming out of the country. For
example, last year, low-cost carrier
AirAsia launched a US$336m Islamic
French-Malaysian lease to finance
eight new aircraft; a year earlier it
issued US$158.5m in sukuk to finance
its capital expenditures. Both deals are
widely considered to be “ahead of their
time” for Islamic finance industry.
This is not to mention two other
deals that were also headline grabbers:
Maxis US$3.3bn IPO and Safeena’s
Shariah shipping investment – the
latter being the first purchase and
forward lease structure used by a

“Exporting knowledge and
know-how is an area where
Malaysian law firms can – and
have to do better”
Andri Aidham

Kadir Andri &
Associates

shipping fund. As Andri Aidham, a
partner at Kadir Andri & Partners
says, “if you look at the Islamic finance
deals being done in the Malaysian
market at the moment, you will see
that the instruments and structures
we are using are more dynamic and
complex than anywhere in the world.”
Mohamed Rizda, founding partner
of Mohamed Rizda & Co concurs with
Andri when he says “Malaysia has the
most advanced regulations in Islamic
capital markets worldwide,” but Rizda,
and others, do note that as far as the
country has come over the last decade
it still has much further to go. If it is to
attain the status as an international
hub for Islamic finance, it must
first fulfill its obligations in its own
backyard and play more of a leadership
role regionally.

According to Azmi
Mohd Ali, managing
partner of Azmi
& Associates, this
involves “widen[ing] the
acceptability of Islamic
finance internationally;”
a process in which
Azmi Modh Ali
Azmi & Associates
Malaysian lawyers,
and their peers in the
financial services industry, will need to
play an important role.
Speaking to ALB earlier this year,
Amir Fazael Zakaria, a senior counsel
for AirAsia, said that Malaysian
lawyers help push products in nascent
Islamic finance markets, singling
out Indonesia as the most obvious
example. “Indonesia is a country with
a population of almost 300 million, and
is also untapped for Islamic finance.
It is not just in terms of the aviation
industry but for consumer banking. It’s
why Malaysia continues to place itself
as a hub. We have a head-start since
we started taking baby-steps almost
three decades ago.”
Some are looking even further
south than the world’s most populous
Muslin nation. Zaid Ibrahim’s recent
announcement that it would enter
Australia to service the country’s
hitherto non-existent Islamic finance
market – while seen by many as yet
another futile attempt to revive its
flagging domestic fortunes – is evidence
of the opportunities on offer for
Malaysian law firms involved with the
propagation of Islamic finance across
the region.
►► Top 10 global Islamic bond issuer
rankings: 2010 Q1
Pos.

Issuer

Deal
value
(US$m)

%share

1

Danga Capital Bhd

612

34.7

2

Dar Al-Arkan Real Estate
Development Co

446

25.3

3

Khazanah Nasional Bhd

228

12.9

4

Saudi Hollandi Bank

193

11.0

5

Gamuda Bhd

97

5.5

6

Cagamas Bhd

94

5.3

7

PT Perusahaan Listrik
Negara-PLN

32

1.8

8

Sunrise Bhd

29

1.7

9

Tradewinds Corp Bhd

15

0.9

10

Aeon Co Ltd

9

0.5

Source: Dealogic

46

“Exporting knowledge and know-how
is an area where Malaysian law firms
can – and have – to do better,” says
Andri. “Indonesia and other countries
in South-East Asia could benefit from
our knowledge of how to structure
Islamic finance deals, as well as
from our knowledge of how to handle
debt structuring and restructuring
exercises.”
But the export of knowledge and
know-how is not the only nexus
through which Malaysian law firms
can broaden their international
horizons. The increasingly global
outlook being adopted by the country’s
corporate sector is also pushing the
nation’s law firms into new areas of
practice and jurisdictions.

Malaysian firms go international

Just as the last 12 months have seen
the country’s economy become more
cosmopolitan and international in
outlook, so too has Malaysia’s legal
services market started to look offshore
for growth. In fact, it can justifiably
be stated that 2009 was a year like no
other in this regard, with
a number of law firms
opening offices overseas,
striking alliances or
joining international
legal associations.
Naqiz and Partners,
for example, set up a
Mohamed Rizda
two-partner/two-lawyer
Mohamed Rizda
& Co
practice in Jakarta
under the moniker
Bastaman Enrico; Mohamed Rizda
& Co embraced its membership
of LawWorld, an independent
international network of international
law firms of which it is the exclusive
Malaysian member; while Zaid
Ibrahim announced that it would enter
Australia in 2010.
Azmi was perhaps the most active
on the international expansion front.
Over the past 12 months the firm
has launched a China desk, entered
into a strategic alliance with PRC
firm ZhongYin, will soon announce a
similar arrange with a yet-to-be named
Indonesian firm and is in the process
of achieving regulatory approvals to
open an office in Singapore. The firm
has also brought two new foreign legal
consultants on board: Michael Doyle
(US-qualified) and Suhaimi Laziri

“Indonesia is a country with a
population of almost 300 million,
and is also untapped for Islamic
finance. It is not just in terms
of the aviation industry but for
consumer banking. It’s why
Malaysia continues to place itself
as a hub”
Amir Fazael Zakaria

AirAsia

(Singapore). “Even from ancient times
of international trade, going global will
always catapult the economy towards
greater prosperity. For law firms an
international strategy is not only a
matter of new sources of revenue, but
also a matter of mutual learning of new
skills and ways of thinking.”
For Syed Naqiz Shahabuddin,
founding partner of Naqiz & Partners,
an overseas office has allowed his firm
to get a headstart on more established
players in the cross-border market,
while Rizda believes that his firm’s
membership of WorldLaw allows it to
handle work they might not otherwise
have had. This is not to mention the
firms that have international presences
through different means, namely
alliances and tie-ups with global law
firms.

A new breed of Malaysian law firm

Despite the international expansion
of a number of players last year, those
firms with a meaningful presence
outside of the country remain firmly
in the minority. While this has a lot to
do with investment flows (Malaysian
clients have been slower to go outbound
than their counterparts in Singapore,
PRC or Hong Kong), for others it is
a function of an over-regulated legal
services market.
“Until recently Malaysian law firms
faced restrictions in terms of selfpromotion and publicity. This cultivated
a very old-fashioned approach to law
and took things like international
offices out of the picture,” says
Andri. “This will change now, Cont p50
Asian Legal Business ISSUE 10.6

alaysia, straddled by the Straits
of Malacca and the South
China Sea, has an undeserved
reputation for being a
transhipment point for networks smuggling
materials for the proliferation of Weapons of
Mass Destruction (“WMD”). The accusation
against the country is that its lack of export
control legislation encourages rogue
networks to transit illicit materials through
its ports.
The Malaysian Government recently tabled
the Strategic Trade Bill 2010 (“the STB”) at
the Dewan Rakyat, the Malaysian equivalent
of the House of Representatives, where the
STB was passed on 5.4.2010 after its third
reading. The STB was passed by the Senate
on 26.4.2010 and is expected to be gazetted
into law by this year.
The proposed legislation provides controls
for the export and transhipment of strategic
items from and through Malaysia. Provisions
in the STB seek to prohibit (1) the export,
transhipment or bringing in transit through
Malaysia of strategic items; (2) the providing
of technical assistance (which includes
instructions, skills, training, the provision
of working knowledge and consulting
services, and the transfer of blueprints, plans,
diagrams, models, formulae, tables, designs,
specifications, and manuals) by any person
from within or outside Malaysia for use in
connection with any activity that supports
the development, production, handling,
usage, maintenance, storage or proliferation
of any WMD; and (3) the brokering by any
person of strategic items unless the person
is registered and holds a valid permit for the
brokering of such strategic items.
‘Strategic Items’ are defined by the STB
as items published in the Government
Gazette and prescribed by the Minister
for International Trade and Industry (“the
Minister”) as strategic items for purposes of
the STB. Thus at this juncture, prior to the
gazetting of the STB, it is not as yet known
what items and or goods will qualify as
‘Strategic Items’ within the STB.
The punishment on conviction of an
offence under the STB is severe. Any act
done by an individual with the intention of

www.legalbusinessonline.com

unlawfully exporting and or transhipping
strategic items is punishable by death or life
imprisonment, if the said act results in the
death of others. An act by a body corporate
is punishable with a minimum fine of RM 30
million. There is no maximum fine provided
in the STB.
A Strategic Trade Controller (“the
Controller”) will be appointed by the Minister
to oversee the implementation of the
provisions of the STB, and whose functions
will include dealing with the regulation
of strategic items, issuing permits, issuing
guidelines for dealing with applications for
permits, registering brokers, and issuing
directives on the implementation of export
screening processes. This is unlike the
system currently in place in the US, where
the control system is administered by a
myriad of departments, licensing agencies
and enforcement agencies with overlapping
and duplicative powers, rather than a single
administrative body. A relic of the cold war,
the US control system is currently undergoing
reform and streamlining.
The STB confers wide ranging powers to
amongst others customs officers, police
officers and officers of the maritime
enforcement agency to enforce its provisions
(“Authorised Officers”). Authorised Officers
have the power to stop, enter, board,
inspect and search any place, premise,
structure, vessel, train, vehicle and aircraft;
the power to recall any vessel, train, vehicle
and aircraft that departs from any port or
place in Malaysia; to search without warrant
any place, premise, vessel, train, vehicle and
aircraft and seize any container, package,
vessel, train, vehicle, aircraft, document and
computerized data; to arrest without warrant
those suspected of committing or having
committed an offence under the STB; and to
intercept communications and transmissions.
The STB however does limit the said broad
powers to situations where the peace, good
order or national security of Malaysia is being
compromised.
There are also provisions in the STB that
allow the Minister to designate an end-user
as a restricted end-user or a prohibited enduser. No strategic items may be exported

or transhipped to a designated restricted
end-user unless a special permit has been
issued for such purpose. No strategic items
may be exported or transhipped at all to a
designated prohibited end-user. The list of
countries, organizations and or individuals
who will be designated as restricted endusers or prohibited end-users has not
yet been published by the Minister in the
Government Gazette.
Interestingly, it is stipulated in the STB that
it shall have extra territorial effect and that
the courts of Malaysia would have extra
territorial jurisdiction in respect of offences
committed under the STB by any person
in any place outside Malaysia. It however
remains to be seen how this will be given
effect to in practice.

he jurisdiction of Labuan, Malaysia’s
International Business and Financial
Centre located in Sabah, has set its
sights on becoming a leading wealth
management centre for Asian investors. To
serve the burgeoning needs of the private
banking sectors in Asia Pacific, Labuan has
re-drafted its trust laws which were enacted
on 11 February 2010.
In this article, Mark Lea (Partner of Lea &
White and Managing Director of Lea & White
International Advisers Limited) provides some
highlights on the new Labuan trust laws.
These laws were drafted with the assistance
of Lea & White, a leading trust law specialist
in the region.
CONTROL: Retention of control by a Settlor
or Protector is one of the most sought after
features in trust law, particularly in Asia. The
Labuan Trusts Act (“LTA”) offers reserved
powers to a Settlor, similar to Jersey.
Also, similar to the British Virgin Islands
Special Trusts Act (‘VISTA’), LTA includes
the ‘Labuan Special Trust’ (LST) to ‘enable a
trust of company shares’ to be established
under which (a) the shares may be retained
indefinitely; (b) the management of the
company may be carried out without power
of intervention by the trustees.
Compared to VISTA, LST is more
contemporary as the trustee is not liable for
losses from speculative or imprudent activities
of the company, and despite the trust to
retain the designated shares, the trustee has
power to sell them as well as protection when
exercising the power.
DURATION OF TRUST: Another sought after
feature is for the trust to exist in perpetuity.
Bermuda, Guernsey, Jersey, Dubai and now
Labuan allows perpetual trusts as a default
provision. There is flexibility for a fixed term
trust to be converted to a perpetual trust and
vice versa; shorten or extend the duration;
and making this retrospective for existing
trusts.
UNENFORCEABLE FOREIGN CLAIM:
Protection against a foreign law claim or
enforcement of a foreign law judgement
is provided for in Labuan, which compares
favourably with Dubai, Bahamas, Bermuda,
BVI, Guernsey and Jersey and to a limited
extent, Singapore.

48
48

TYPES OF TRUSTS: Labuan has introduced
Purpose Trusts thus comparing favourably
with Cayman’s STAR Trusts, Guernsey,
Dubai, BVI, Jersey, Bermuda and Mauritius.
It has included the promotion of art,
science, religion and unique to Labuan,
‘the advancement of human rights and
fundamental freedom’.
TRUSTEES’ POWERS AND DUTIES: In place
of the ‘statutory duty of care’, Labuan has the
common law standard of ‘the prudent man’
test. It has also introduced specific provisions
relating to Trustees’ powers in investment,
delegation and insurance while Labuan’s
modern statement of Trustees’ duties
compares well with Dubai.
CONFIDENTIALITY: Labuan has provision
ensuring confidentiality balanced against
provisions requiring Trustees to provide
information.
PROTECTORS AND BENEFICIARIES: Good
modern trust law provides for a Protector as
a watchdog for the Beneficiaries and Labuan
covers these matters.
Labuan compares favourably with Guernsey
and Dubai with its provisions identifying
Beneficiaries; powers of addition and removal
or exclusion of Beneficiaries; disclaimer by a
Beneficiary of his interest in whole or part;
class closing rules; and determining the nature
of a Beneficiary’s interest and whether or not
the Beneficiary can deal with that interest.
RIGHT TO INFORMATION: Labuan’s
guidelines covering the right for Beneficiaries,
a Settlor, Protector, enforcer and for the Court
to receive information, position Labuan at the
same level as Dubai and Mauritius.
NATURE AND EXISTENCE OF A LABUAN
TRUST: LTA describes the Settlor as either a
“qualified person” (a non- Malaysian resident)
at the time the trust is created, or “resident”
at that time provided the trust property
does not include any Malaysian property.
Beneficiaries have to be “qualified persons” at
the time the trust is created or at a time they
become entitled to be beneficiaries.
Unlike Guernsey which permits trusts to be
created orally or by conduct, a Labuan Trust
must be in writing and can be by unilateral
Declaration of Trust which need not name the

Settlor. Thus, Labuan provides the clearest
and most user friendly provisions in trust laws.
THE PROPER LAW OF A LABUAN TRUST:
The law governing a Labuan trust is that
chosen by the Settlor or implied in the trust.
In this respect, Labuan compares suitably
with Dubai, the Cayman Islands, Bermuda,
Guernsey, Isle of Man and Jersey.
MIGRATION OF A LABUAN TRUST:
Labuan, like Dubai, has provided for the
redomiciling of trusts into and from the
original territory with a consequent change of
proper law.
LETTER OF WISHES: An unusual provision
that puts Labuan in a positive light concerns
the letters or memoranda of wishes given by
the Settlor, a Beneficiary or a member of a
class of Beneficiaries.

PYGMY FLYING SQUIRREL
this squirrel, the smallest flying squirrel species, is
found in the jungles of Borneo and Peninsular Malaysia,
where they gather fruits, nuts and bird’s eggs.

Today’s uncertain times demand more efficient strategies
to safeguard your assets and grow your wealth. Small wonder
then that international companies and high net worth
individuals are making tracks to Labuan International Business
and Financial Centre.

•

In barely 20 years, a multitude of companies, insurance entities
and banks have been established here to enjoy our generous
tax incentives, comparatively low costs of operations and one
of the largest double taxation treaty networks in the region.

•

Our clear laws provide superior protection and certainty, while
new ones provide greater flexibility in the way you do business.
For example, the types of trusts offered under our Trusts Act
are as modern as they are ground-breaking:

•

•

The Labuan Special Trust is ideal for succession planning
among high net worth individuals and families as the
trustee cannot interfere in the day to day running
of the company.

www.legalbusinessonline.com

ConneCted
Convenient
Cost-effiCient

•

•

Non-residents may place their Malaysian assets into
a Labuan trust while residents can set up a trust for
their international or Malaysian assets on approval of
the regulator, Labuan FSA
The types of trusts range from purpose trusts to
charitable ones.
Assets and roles of trust protectors are legally protected
and clearly safeguarded by legislation.
As an alternative, civil law-based Labuan Foundations
permit private estate planning and the establishment
of charitable foundations.
A trust need not be registered with the regulator but
a foundation must do so.

but it will still require a big change
in mindset… a more business-like
approach.”
That the change in mindset that
Andri speaks of is already occurring
is evident not only in the recent
outbound expansion by Malaysian
law firms, but also in the success that
smaller and less-established firms
have had in reshaping the complexion
of the country’s legal services market.
“There is a new breed of firm coming
through in Malaysia at the moment,”
observes Naqiz. “These firms are
smaller and usually spin-offs from
larger law firms, but what they lack
in tradition they make up for in hard
work and value-for-money.” Naqiz
himself started his firm after stints
at Skrine and Wong & Partners.
“Smaller players are more aggressive
and you won’t find us relying on the
strength of our brand like some of the
larger players do… ” The success that
less-established law firms have had
is perfectly evidenced by looking at

No
discounts

M

alaysian lawyers have
voted against a free-market
system to regulate legal fees,
choosing to keep current
rules dictating how much they can
charge for legal services. This is despite
continuing client demand for discounted
legal fees, and the fact that lawyers
could face disciplinary action for
discounting or undercutting scale.
Malaysian lawyers are required to
abide by the Solicitors Remuneration
Order, which came into effect in 2006
to regulate the cost of non-contentious
legal work. A proposal to abolish
scale fees in preference for a freemarket system was voted down at
the Malaysian Bar Council’s annual

50

which firms landed mandates on the
largest deals of the last 12 months.
For instance, the Petronas Jumbo
sukuk (Kadir Andir, Zul Rafique);
Safeena First Investment (Azmi &
Associates); Maxis IPO (Zul Rafique,
Kadir Andri); Citigroup RM1bn Asset
Securitisation (Mohamed Rizda &
Co), are all conspicuous because of
the lack of involvement by some of the
country’s oldest and largest law firms.
And while the power and influence
of some of Malaysia’s largest law firms
has noticeably declined over the last
decade, this should not detract from
the feats of mid-tier firms in this
period— a process which lawyers ALB
interviewed noted will only deepen in
the years ahead as the Malaysian legal
services market continues to mature.

Even though the Malaysian
legal services market is already
witnessing unprecedented levels of
competitiveness, recently introduced

socio-political changes are also likely
to increase the competition between
law firms. Earlier this year, the
country’s Prime Minister Datuk Seri
Najib Razak announced
that the affirmative
action policies which
had hitherto informed
almost all aspects of life
in Malaysia would be
augmented to become
“more market friendly.”
Datuk Seri Najib
Razak
Under these plans,
Malaysia PM
the government will
liberalise 27 service
sub-sectors and dilute the requirement
that the country’s indigenous people,
bumiputra, hold at least a 30% share
in corporate equity. And although the
twin raison d’etre of the reforms are
to encourage foreign investment into
Malaysia’s tourism, legal and financial
services sectors and wean the country
off its dependence on royalties accrued
from its oil reserves, it is also expected
to change the way government – and
government-linked companies –

general meeting in March, with an
overwhelming 121 votes against, 10 for.
Managing partner of Lee Swee Seng
& Co Lee Swee Seng proposed the
motion, and said he was disappointed
at the outcome but remains hopeful for
change. “Lawyers by and large would
like to tell the world that the SRO is
being followed, while at the same time
knowing that there is no way to enforce
it. They have the liberty and the luxury
to give discounts while there is no fire
[on them], and they want to have the
best of both worlds.”
The motion argued that the SRO
was difficult to enforce because the
pressure on firms to discount was too
widespread; lawyers that don’t cut
fees for clients are also likely to lose
work to those that do; and clients will
continue to demand discounts as they
are not held accountable by the SRO.
It suggested that instead, scale fees
should be used only as a guideline, and
that lawyers should not be accused of
“unprofessional and improper conduct”
by a disciplinary board for discounting
by market demand.
According to a representative from the
Malaysian Bar, the motion was voted
down because lawyers feel that scale

fees are necessary for
sufficient compensation.
Lee, however, said that
the meeting was overrepresented by litigation
lawyers who aren’t
affected by the SRO as
Lee Swee Seng
Lee Swee Seng
much as others, such as
& Co
conveyancing lawyers.
“Conveyancing lawyers aren’t likely to
attend these meetings,” he said.
Former Bar Council president Ambiga
Sreenevasan said that there is no way
to monitor lawyers that undercut scale
fees. “It’s down to the individual lawyer
and some of them are spoiling [the
system] for others [by discounting], so
we should have a whistle-blowing system
to report on those that do,” she said.
“There is a public interest element
here – if lawyers are prepared to
undercut we’re concerned that the
quality of legal services will suffer.”
Discounting is not exclusive to the
Malaysian experience – Asian firms
are widely known for their competitive
fees. But Lee said it should be the
market dictating how much lawyers are
paid. “I think in all fairness that it’s
the public that needs protection from
overcharging,” he said. ALB

Dilution of affirmative action: the
great leveler for legal services?

Asian Legal Business ISSUE 10.6

ALB special report | Malaysia 2010 >>

procure legal services.
Azmi believes that while the
Malaysian legal services market
remains a “know-who” one, the dilution
of affirmative action may contribute
to a more equal playing field. He says
that it will “dispel complacency and
encourage fair competition in the legal
services market.”
Where these changes will have the
most salient short-term impact may
be in relation to panel legal work.
At present, many of the country’s
largest users of legal services have
strict requirements regarding the
composition of their panel firms in
place, with a high number insisting
that bumiputra lawyers hold upwards
of 35% equity in their respective
firms. Here, dilution of affirmative
action could see firms without a large
bumiputra contingent benefit.
But lawyers that ALB spoke to
still question whether there will be
any tangible gain here. They said
that having bumiputra firms on the
panel was mere “window dressing”,

questioning the extent to which
bumiputra firms benefited under these
policies in the first place.
“My firm has been placed on the
panel of many banks as we are 100%
Bumiputra. But we do not get the work
we ask for,” said one lawyer, who did
not want to be named.
“It is, in fact, even more depressing
that once the firm has been placed
on the panel, we are never to act
against them, in other words, we can’t
represent another party. So, it is better
for most firms to stay [off] the bank
panel. For instance, if we did their debt
collection cases, they squeeze the legal
fees until we would only survive if we
did bulk work.”
Sentiments like this, which are quite
widespread, indicate that it may take
some time before the full effects of the
dilution and affirmative action begin to
manifest. In addition, as Azmi points
out, it may take even longer to before
politically connected law firms no
longer enjoy favoritism and compete on
a pure merit basis. ALB

The Malaysian competition act 2010:
changed or be changed

T

he Malaysian Competition Act 2010
was passed by Parliament on 6 May
2010, a month after it was first tabled
at the House of Representatives.
The speed at which it was passed surprised
many since it took the Bill 17 long years to
reach Parliament, but reflects the Malaysian
government’s concern in providing more
protection to consumers. The Act seeks to
promote and protect the process of competition
by changing the behaviour of businesses. The
government has announced that the Act is likely
to be implemented by mid-2011.
It prohibits anti-competitive agreements
between enterprises and abuse of dominance.
Any entity that carries on commercial
activities relating to goods or services will be
caught. Agreements between enterprises
are prohibited if they have the object or
effect of significantly preventing, restricting
or distorting competition in any market.
Enterprises which are in a dominant position
are prohibited from engaging in conduct
amounting to abuse of that dominance.
Unlike many other jurisdictions, the Act does

www.legalbusinessonline.com

not have merger control provisions.
The Act has extraterritorial effect.
Commercial activities transacted outside
Malaysia will be caught if they have an effect
on competition in Malaysia. Enterprises
which are found to have infringed any of
the prohibitions may be liable to a maximum
financial penalty of 10% of their worldwide
turnover for the period of infringement.
The Malaysian Competition Commission
will be established to enforce the Act. The
Commission is given considerable powers of
investigation and enforcement. It may also
provide individual and block exemptions for
certain types of agreements. Interference with
the Commission’s powers is an offence. Noncompliance with the Act will affect not only
enterprises but their directors, management
and employees too. Directors, CEOs,
managers and company secretaries may be
personally liable for their companies’ offences.
Enterprises are also exposed to civil liability as
members of the public who suffered loss or
damage as a result of an infringement have a
right of private action in court.

“There is a new breed of firm
coming through in Malaysia at
the moment. These firms are
smaller and usually spin-offs
from larger law firms, but what
they lack in tradition they make
up in hard work and value for
money”
Syed Naqiz
Shahabuddin

Naqiz & Partners

Firm Profile

SKRINE

A leniency program and stepped-reduction
in penalties are also provided in the Act.
Whistle blowing is encouraged - threats
and reprisals against whistle blowers are an
offence.
Malaysia’s new competition law brings
us in tandem with our ASEAN neighbours
and other developed nations. It is “gamechanging”. There will be no turning back
once the Act is implemented. It will no
longer be business as usual for Malaysian
enterprises. They will either have to change or
be changed.

Powerful advice
Through a series of landmark transactions in recent years, GCL-Poly has become one of the largest
players in the world’s solar power industry. ALB finds out how the in-house legal team has transformed
itself into a vital, value-adding part of the business

A

s China leads the world in
developing and investing in
clean-energy technologies to
curb carbon emissions, Hong
Kong-listed GCL-Poly Energy Holdings
has established itself as one of the top
green energy operators in the country.
It is one of the leading polysilicon
and wafer suppliers in the world, and
consequently the company’s in-house
legal department has expanded and
evolved as the company has grown.
Starting with one person in 2001,
the in-house team now consists
of 15 lawyers located across the
Shanghai, Suzhou and Hong Kong
offices, handling the legal affairs and
managing risks for a company that
owns 21 subsidiaries and associated
power plants, a solar farm and several
polysilicon and wafer facilities. The
legal team was selected as a finalist
for the Foreign Company In-House
Team of the Year Award at the recent
ALB China Law Awards, recognised
for being a first-class advisor to its
company and the significant progress
the team has made over recent years.
Susan Wu, the company’s chief
legal officer for the power sector, is
the founding member of GCL-Poly’s
in-house team. Previously with a
Shanghai law firm, she joined as
the company’s first in-house lawyer
in 2001 and helped build the in-house
team to its current capacity. Wu sees a
correlation between her team’s success
and the senior management’s respect
for the rule of law.
“The CEO and senior management
team’s commitment to integrity and
legal compliance forms a foundation for
the in-house legal team to excel,” says
Wu. “The team’s legal understanding,

52

business acumen and depth and
strength of technical expertise, in
turn, are the key factors determining
success.”
Many obstacles and challenges exist
on the road to success. Wu believes
her team’s main challenge lies in
achieving the right balance between
safeguarding the company’s legal
compliance measures and proactively
supporting business growth. “For a
dynamic company like GCL-Poly, we are
constantly seizing exciting opportunities
for growth. Naturally one must be alert
[to the fact] every potentially rewarding
project comes with commensurate
risks,” she says. “We work closely with
our company’s management, and other
functional departments to formulate
appropriate business strategy, and
assist them in achieving and executing
new business goals.”
To reach the right balance, Wu
believes in-house counsel must strive
to be value-adding members of the
management team, as opposed to
constantly raising obstacles. “Inhouse counsel, with their particular
knowledge of the industry in which
their company is engaged in, must be
more innovative than external counsel.
They should be more able to devise
viable solutions for potential projects
to move ahead and become successful
business units,” she says.

Landmark transactions

Since its inception, GCL-Poly’s in-house
team has been involved in a diverse
range of projects and investments,
supporting the company to expand
its green energy portfolio across
cogeneration, biomass, incineration,
wind and solar power sectors. “The

in-house team has always had a strong
and close working relationship with
the investment department, and has
developed a wealth of expertise in legal
issues relating to all aspects of the
company’s business,” says Wu.
The past four years, in particular,
have seen the team playing an
instrumental role in the company’s
milestone developments. These
include its IPO on the HKSE in
November 2007, and the US$3.4bn
acquisition of Jiangsu Zhongneng
Polysilicon Technology Development
in July 2009. “The 2007 IPO marked
a significant milestone in the life of
GCL-Poly, and it served as a passage
for the in-house legal team to reach a
higher level of maturity,” says Wu.
“The IPO process has really tested
our team’s abilities, but we’ve gained
a tremendous amount of first-hand
knowledge and experience on a wide
array of issues and listing-related
matters through working on the deal
from the very beginning.”
Asian Legal Business ISSUE 10.6

Feature | interview >>

In the 20 months leading up to the
IPO launch the in-house team was
extremely busy, working closely with
the internal IPO execution team and
15 external advisors and intermediate
institutions. These included the PRC,
Cayman Islands, Hong Kong and
international legal counsel, financial
advisors and underwriters, all finding
solutions for many complicated issues
during the preparation process. The inhouse team played an important role in
managing the data room, coordinating
due diligence, restructuring, obtaining
regulatory approvals, drafting the
IPO's legal structure, negotiating
listing plans and timetable, preIPO financing, as well as answering
questions raised by all concerned
parties and regulators and reviewing
and finalising the prospectus.
“It’s a transformational process.
Having been through the challenges
and pressures during the IPO process,
most of the projects and matters
now seem easy to us,” says Wu. “In
addition, as the company becomes a
public company, it is paying increasing
attention to related-party transactions,
corporate governance, procedure and
compliance, and disclosure issues. As
a result, the in-house legal function’s
importance within the company has
been further elevated.”
Last July, GCL-Poly’s US$3.4bn
acquisition of Jiangsu Zhongneng
opened another exciting chapter for the
company’s growth. Upon completion,
GCL-Poly became China’s largest – and
one of the world’s leading –polysilicon
producers. It was the in-house team
which coordinated a large number of
law firms and ensured the successful
completion of this highly complex
deal involving 30 parties. It was also
the largest M&A deal seen in Asia
in 2009, and was awarded “M&A Deal
of the Year” at the ALB China Law
Awards 2010 held recently.
Other major transactions that the
in-house team assisted the company to
complete have included the US$760m
investment by China Investment
Corporation at the end of 2009 and
GCL-Poly’s acquisition of a controlling
stake in Konca Solar this year.

Strong team leadership

GCL-Poly’s flotation and strategic
shift towards the solar power business
means the in-house legal support
www.legalbusinessonline.com

must be strong and diverse. Thus,
immediately after the 2009 acquisition,
the company appointed Tong Kay Tak
Tom as its vice president and general
counsel in Hong Kong.
Tong, a practising solicitor in Hong
Kong, was director and vice president
in charge of legal affairs of Jiangsu
Zongneng before he joined GCL-Poly.
He brings extensive experience of
international corporate and capital
markets practice to the in-house legal
department, and is joined by another
in-house counsel in Hong Kong.
As the solar power unit becomes
a dominant part of the company’s
business, GCL-Poly recently also
named longstanding in-house counsel
Dai Mengyang as director of the legal
department. Dai, who joined in 2003,
will oversee all legal matters for this
new but rapidly expanding business
unit. Currently he leads eight in-house
legal staff working in Suzhou, while
Wu and three other members of the
in-house department in Shanghai focus
on the provision of legal advice and
services to the company’s power sector.
While continuing to provide excellent
support for the power sector, GCL-Poly’s
newly expanded in-house legal team can
also now provide full support and advice
on the company’s new projects and
investments in photovoltaic material
production and other solar energy
projects, both at home and abroad.

team’s responsibility. Wu says that
the department enlists the services
of external counsel in three main
instances: for transactions in which
legal opinions issued by law firms are
required, to handle issues and matters
that are outside of the in-house team’s
expertise, and for complex projects
and transactions that require extra
resources and manpower.
In addition, the department calls on
a large number of regional and local
firms across the country for subsidiaryrelated work. In the past year, the type
of work for which GCL-Poly’s in-house
team mostly used external counsel
was M&A transactions. The team has
worked with Jun He’s Shanghai office,
Grandall (Beijing), Zhejiang Sunshine,
Hong Kong’s Gordon Ng & Co,
international firms Milbank Tweed,
Hogan & Hartson and Freshfields and
offshore firm Conyers Dill & Pearman.
When choosing which firm to engage
as external counsel, “expertise in

“The team's legal understanding, business acumen and
depth and strength of technical expertise, in turn, are
the key factors determining success"
Wu anticipates continued growth
and new challenges in the legal
department in the coming years. “Our
legal function will have to keep pace
with the growth of our company and
changing regulatory requirements.
As the company expands its business
globally, we’ll need to gain knowledge
of the relevant law and regulations
in overseas jurisdictions in which our
company operates,” she says.

Leveraging external expertise

Like most other in-house departments,
GCL-Poly’s legal department needs to
use outside firms for support in certain
circumstances, and managing external
counsels naturally forms part of the

Susan Wu

GCL-Poly

specific areas” is the top criteria cited
by Wu. “For most day-to-day legal
matters, external lawyers cannot
match the in-house team in terms of
understanding of the issues and speed
of response,” she explains. “However, we
do value external counsels’ extensive
expertise and knowledge in many
other areas of the law. Their logistics,
know-how, precedents and experience
in solving similar legal issues are
invaluable to us. The in-house counsels
are there to identify and leverage these
advantages and design innovative
structures and solutions. Fee levels
are of a lesser concern when we select
external counsel. What we value most is
expertise, expertise and expertise.” ALB
53

Deutsche Bank SA;
Shougang Group Corporation;
and State Grid Corporation
of China
Guangzhou Automobile
Group Company Limited

Beijing Tianyin;
Woo Kwan Lee & Lo

2,466

21-May-10

Agricultural Bank of China
(Undisclosed stake)

National Council for
Social Security Fund

18-May-10

Plena Transmissoras SA
(Seven Brazilian
transmission companies)

State Grid Corporation
of China

21-May-10

KBL European
Private Bankers SA

10-May-10

Nippon Commercial
Investment Corporation

United Urban Investment
Corporation

1,663

21-May-10

EON Capital Berhad

Hong Leong Bank Berhad

1,560

10-May-10

Anglo American Zinc

Notes:

Advising seller:
Allen & Overy

Seller Company

Deal Value
(USDm)
8,286

3,720

Piramal Healthcare Limited

2,198

The Hinduja Group

Loyens & Loeff

Advising seller:
A&L Goodbody; Linklaters

Corpus Legal Practitioners;
Dewey & LeBoeuf

Plena Transmissoras SA

1,721

KBC Group NV

1,697

Anglo American Plc

1,338

Top deals table includes lapsed and withdrawn bids, and is based on geography of either target, bidder or seller company being Asia-Pacific•Quarterly trend graph excludes lapsed and withdrawn bids, and is based on dominant
geography of target only being Asia-Pacific•League tables are based on geography of either target, bidder or seller company being Asia-Pacific. League tables of legal advisors include lapsed and withdrawn bids, while league tables
of ﬁnancial advisors exclude lapsed and withdrawn bids. League tables are ranked by value • Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target
exceeding USD 10m•Activities excluded from statistics include property transactions and restructurings where the ultimate shareholders’ interests are not changed.

Based on announced deals, including lapsed and withdrawn bids, from 1 January 2010 to 21 May 2010

Based on announced deals, excluding lapsed and withdrawn bids, from 1 January 2010 to 21 May 2010

Asia-Pacific M&A Activity - Quarterly Trends
900

200,000
180,000

800

Value (USDm)
Volume

140,000

700
600

120,000

500

100,000

400

80,000

300

60,000

200

40,000

100

20,000
0

54

Number of deals

Value (USDm)

160,000

Q1
03

Q2
03

Q3
03

Q4
03

Q1
04

Q2
04

Q3
04

Q4
04

Q1
05

Q2
05

Q3
05

Q4
05

Q1
06

Q2
06

Q3
06

Q4
06

Q1
07

Q2
07

Q3
07

Q4
07

Q1
08

Q2
08

Q3
08

Q4
08

Q1
09

Q2
09

Q3
09

Q4
09

Q1
10

Q2
10*

0

AsianLegal
LegalBusiness
BusinessISSUE
ISSUE
10.4
Asian
10.5

MARKET
DATA | |M&A
M&A>>
>>
market data

In association with

Notes:

League tables are based on geography of either target, bidder or seller company. League tables of legal advisors include lapsed and withdrawn bids, while league tables of financial advisors exclude lapsed and withdrawn bids.
League tables are ranked by value•Statistics includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from statistics
include property transactions and restructurings where the ultimate shareholders’ interests are not changed.•Q2 10* = 1 April 2010 to 21 May 2010

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AS I A PACI F I C | EU R O P E | N O R T H A M ER I C A

CHIEF COUNSEL FOR ASIA
Global Emerging Markets Private Equity Fund Manager
Primary In-house Counsel for APAC
Complex Secured Debt Financings of Long-Term Investments
Leading global emerging markets private equity fund manager is seeking an experienced transactional lawyer to act as primary In-house
Counsel with responsibility for the firm’s Asian operations.
Candidates will be prepared to move to Hong Kong, and will have at least 8 – 10 years of experience in complex corporate transactions,
including meaningful experience in a first-rate US or London-based law firm; experience in complex secured debt financings of long-term
investment, such as leveraged acquisition finance or project finance; general corporate and securities experience in an area such as mergers
and acquisitions, private equity or venture capital; and experience in cross-border transactions in emerging markets.
Employer is prepared to offer a competitive compensation package, including an annual base salary, an annual performance-based discretionary
bonus, participation in a carried interest program, and eligibility in all corporate employee benefit programs currently provided to similarly
situated employees.
To apply please enter 18776/SDAK in the ‘Job Ref Number/Keyword’ section of jobs.hk.hudson.com or contact Sam Dakin on
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